Sahardid v London Borough of Camden

LORD JUSTICE PETER GIBSON: I will ask Sir William Aldous to give the first judgment.

SIR WILLIAM ALDOUS: The appellant was born in Somalia in 1972. She arrived in this country in 1998 and claimed asylum. On 2nd November 1998 she gave birth to a son. In 2000 she was granted indefinite leave to remain in this country.

This appeal is concerned with the appellant's application to the London Borough of Camden ("Camden") to be housed. Her application was of considerable concern to the appellant who was homeless. It was treated sympathetically by Camden, which had of course a limited stock of housing, and were concerned to deal with her application according to the law.

At the heart of this case is a narrow issue of law and I can therefore confine quotation of the statutory provisions to a few sections of the Housing Act 1996 as amended by the Homelessness Act 2002.

The 1996 Act entitles a homeless person to apply to be housed and in certain circumstances to be provided with suitable accommodation. Section 184 provides:

The appellant had priority need to be housed and therefore section 193 applied. The relevant parts of that section to this appeal are as follows:

Section 202 provides to an applicant the right to request a review of the decision. Section 202(1) provides:

After a review an applicant has a right to appeal on a point of law to the County Court under section 204.

The appellant's application to Camden was made on 9th July 1998. By letter dated 1st November 2000 Camden came to the conclusion, having considered her application, that she was eligible for assistance, she was homeless, she was in priority need and that her homelessness was not caused intentionally. They therefore accepted, having concluded that she had a local connection to Camden, that they were under a duty to accede to her application.

The applicant had before coming to this country suffered genital mutilation three times between the ages of 10 and 13 and suffers from a fibroid uterus which causes menstrual bleeding. She maintained in her application that she needed two-bedroomed accommodation to provide adequate privacy and to shield her symptoms from her son.

The duty upon Camden was to provide the appellant with "suitable" accommodation. Camden, as I have said, like other local authorities do not have unlimited access to accommodation. They have to comply with the law when considering such an application. The legislation requires them to publish details of their housing application policy. This is contained in Part VI of the Act, and in particular section 167 which provides that every local housing authority shall have a scheme, called an allocations scheme, for determining priorities. It also provides that the scheme shall be framed so as to secure reasonable preferences to certain persons, and in section 167(8) that:

Camden have carried out their duty under that legislation and have published a document entitled "A guide to the council's Housing Allocations Scheme". Its purpose is concisely set out in the introduction:

The booklet continues with a number of chapters explaining how to put in an application; how their application will be considered; who is likely to get housed more quickly; and the points scheme mentioned in the introduction. At page 22 of that booklet this statement appears:

After receiving the appellant's application, Camden made enquiries as to the appellant's medical condition. On 28th April 2003 Camden decided to offer her accommodation at 10 Webheath which was a one-bedroom flat. She appealed. The basis of her appeal was her medical condition.

Her appeal was rejected in a letter dated 30th April 2003, which stated that the council were sorry to inform her that her appeal had not succeeded. The medical officer had not supported her need for two-bedroomed accommodation and in those circumstances the offer still stood. The letter went on to explain her rights.

Solicitors acting on her behalf sought a review of that decision in a letter dated 14th May 2003. That letter stated that the accommodation offered at 10 Webheath was not suitable as it was not big enough for their client and her child to share. It went on to set out the appellant's special medical circumstances and to suggest that, having regard to those circumstances, a two-bedroomed accommodation was necessary.

The decision was upheld by letter dated 14th July. I need not read that as it was the subject of an appeal which was compromised in September 2003 with an undertaking to re-review the appellant's case. That was done and Camden's decision was notified to the appellant in a letter dated 5th November 2003. The letter sets out the reasons why it was suggested that the accommodation was not suitable and came to this conclusion:

The letter goes on to record the enquiries and information that Camden obtained upon her medical condition. It continued as follows:

It is important to bear in mind that the appellant's son was born on 2nd November 1998 and therefore was over five years old by three days at the date of the letter. Thus the appellant would, according to Camden's allocations scheme, have been eligible for a two-bedroom flat. It is important to note as well that the letter which I have read of 5th November 2003 did not refer to the age of the appellant's son. The letter set out the case details and the reasons that had been advanced by the appellant for a two-bedroom property which had been based on medical grounds. The decision dealt with those grounds.

The appellant appealed to the County Court. It came before His Honour Judge Dean QC sitting in the Central London County Court. He gave judgment at the end of the hearing on 9th March 2004. The essential issue before the council was whether the accommodation offered was suitable. The issue before the judge was whether there was an error of law, namely an error on the face of the record.

The basis for the appeal was that the reviewer had not taken into account that the appellant's son at the date of review was over five years old and therefore was, according to Camden's allocations scheme, eligible for a two-bedroom flat. That issue resulted in the judge having to decide two main points. First, was the reviewer obliged to consider the son's age at the date of the review or was the proper date for consideration the offer date? I will refer to that as the review date point. Second, if it was the date of the review, did the appellant's eligibility render the offer of one-bedroomed accommodation as improper?

The judge in his careful judgment considered whether the circumstances to be taken into account on review were those at the date of the review or at the date of the offer. I will not at this stage go into his reasons, but he concluded:

The judge then set out the principles of housing law and went through the review letter which I have read. He said this as to the letter at paragraph 23:

The judge went on to give these reasons for dismissing the appeal:

Mr Russell, on behalf of the appellant, submitted in this court that the judge had rightly held that the review had to be conducted upon the facts as they existed at the date of the review, not the date of the offer. The judge was also right, Mr Russell submitted, to realise that the review letter had failed to consider the age of the appellant's son and to consider Camden's allocations scheme. Mr Russell went on submit that the judge, having realised that the review letter did not mention the council's policy nor the age of the appellant's son, had wrongly concluded that there was no error on the face of the record. Camden had, in accordance with their decided housing scheme, as required by section 167(1) of the Act (as amended), acted contrary to subsection (8) of that subsection which required Camden to have regard to the scheme. The review did not address the allocations scheme and the appellant had been denied her right to have her case considered according to the published criteria. There was, it was submitted, a clear error of law on the face of the record. In any case the suggestion by the judge that the fact that the son's age exceeded the cut-off of five years was de minimis was irrelevant and wrong. An allocation policy was required by the Act and the Act required Camden to follow it. The policy had been chosen by Camden. They had chosen a five-year cut-off and the judge had no right to disregard it.

Camden in a respondent's notice challenge the judge's conclusion that the relevant facts were those that existed at the date of the review. However, they supported the judge's ultimate decision, even if he was right on the review date issue. I will deal with the issues on the respondent's notice later in this judgment, but I will first consider the appeal.

Mr Rutledge, who appeared for Camden, accepted that there was an obligation on Camden to allocate according to their published policy. Even so he submitted that the judge had not erred. He reminded us of the well-known statement in the speech of Lord Brightman in R v Hillingdon LBC ex parte Puhlhofer [1986] 1 AC 484, at 518, that the local authority was the authority responsible for decisions of fact and in particular to decide what accommodation was suitable. He submitted that the judge's conclusion had behind it the basic principles of housing law which the judge had set out earlier in his judgment as to suitability. In particular, that "suitability" was not an absolute concept: see R v Newham LBC ex parte Sacupima (2001) 33 HLR 1, at 11. There Dyson J said:

10 Webheath may not have been ideal for the appellant, but there was nothing to suggest that it was not suitable. That this court should recognise. It should not interfere with a local authority's decision on suitability unless it was clearly wrong: see R v Camden LBC ex parte Jibril (1997) 29 HLR 785 at 791. Further, Mr Rutledge submitted that the judge had a discretion and the approach that he adopted could not be said to be wrong.

I accept the basis of Mr Rutledge's submissions as to the general approach to be adopted by a local housing authority. But in my view they do not address the relevant issue in this case. The law required Camden to allocate accommodation in accordance with the law and their stated policy. They did not purport to do so. They never considered whether the appellant was eligible for two-bedroomed accommodation or only one, having regard to the age of her son. This was a clear error of law that in my view cannot be excused, although it can be understood in the light of the papers that were before the reviewing officer at the time. The council knew of the age of the child, but it was not at the forefront of the solicitors' complaint put before the reviewing officer.

I also reject the way that Mr Rutledge interpreted paragraph 27 of the judge's judgment. He submitted that the judge concluded that there was no error on the face of the record because the question of suitability had been considered and dealt with. In my view it is clear from the last two sentences of that paragraph that the judge believed the fact that the appellant's son was three days over the age of five years was de minimis and therefore there was no error. However, it was Camden who chose a cut-off at five years and therefore they should have taken the son's age into account.

I come next to the respondent's notice. I have already read the relevant parts of section 193. Amongst other things they provide that a local housing authority ceases to be subject to the duty to allocate housing under the section if the applicant has been properly informed of her rights and had refused the final offer. One of the those rights is a right of review. There is in my view no indication in the section as to what facts the reviewer needs to take into account, and in particular whether the facts that have to be taken into account are those at the date of review or the date of the offer.

The judge in paragraph 7 of his judgment drew attention to the regulations that had been made pursuant to the powers given to the Secretary of State. The Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996 stated:

The judge then went on to consider the case of Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547, which went to the House of Lords. He concluded that the guidance given in that case was such that it was right that the reviewer should take into account the facts at the date of the review.

Mr Rutledge submitted that the judge was wrong to place reliance on the speech of Lord Slynn in the Mohamed case. In particular, he drew attention to the fact that that case was concerned with whether there was a local connection and not whether accommodation was suitable. Mr Rutledge submitted that it was important to note that Lord Slynn had accepted the proposition that an applicant's local connection with a borough could develop whilst the local authority considers and reviews its decision. He submitted it therefore followed that in such a case the reviewer was bound to have regard to the up-to-date situation. That he submitted was fundamentally different to a review of a past offer of accommodation under section 193(7). In any case, Mohamed was decided under materially different review regulations and in those circumstances guidance could not be obtained from the speech.

For my part, I have come to the conclusion that the judge came to the right conclusion on this issue for the right reasons. His conclusion is, I believe, both consistent with logic and with the views expressed in this court and the House of Lords in Mohamed. The suggestion that the reviewer should not take into account the facts as at the date of the review would lead to difficulties if, as is sometimes the case, there is a delay between the offer and the final review. In this case there was some delay as there had been a review and then a re-review. In some cases the final review only takes place after an appeal to the court. To confine consideration to the facts that existed months or perhaps a year before could lead to injustice and in my view is contrary to logic. There is support for that view in the judgment of Henry LJ in the Mohamed case [2001] QB 97. He said this at paragraph 31 at page 106:

Henry LJ went on to deal with the change in regulations. Having quoted regulation 17.11 that the authority had to carry it out the review on the basis of the facts known to them at the date of the review, including written representations, he said this:

It would be odd that a change in the date, or something so dramatic as that, should be left to silence. It is my view that, although there is an omission in the 1999 regulations, that did not affect the duty upon the council to consider the facts as at the date of the review.

The judge quoted from the judgment of Lord Slynn at page 554. His reasoning is persuasive in this case although dealing with the issue as to whether there was a local connection. He said:

That statement of Lord Slynn is a clear indication, consistent with logic, that the administrative decision taken by the reviewer needs to be taken upon the facts that exist at that time. To do otherwise would be shutting one's eyes to the actual facts, which could cause to do an injustice.

Mr Rutledge also submitted that there was no error on the face of the record, whatever the date. He submitted that the question of eligibility was irrelevant to the decision whether the accommodation was suitable. Translated to the facts of this case, it was irrelevant to the decision of the re-reviewer that she had not taken into account the fact that the appellant was eligible under the council scheme to two-bedroomed accommodation.

That submission I reject. The council have a policy as required under the legislation. Persons acting on behalf of the council should take into account that policy, and in this case that meant that they should take into account that the appellant was eligible for two-bedroomed accommodation. I realise that eligibility for two-bedroomed accommodation does not mean that in all cases an offer of one-bedroom accommodation would be wrong. But the reviewer should consider the factual background, including the council's policy, and come to a conclusion as to whether the accommodation was suitable.

Finally, I come to Mr Rutledge's submission based on discretion. He submitted that even if this court came to the conclusion that there was an error of law on the face of the record, this court when exercising its discretion should not grant any relief. He reminded us of the judgments in this court in Ali v Newham LBC [2002] HLR 20 413. The proposition for which he cited the case can be taken from the headnote. The relevant part is in this form:

Mr Rutledge submitted that the appellant, having accepted the offer, was already a Part VI tenant of Camden, she had applied for a transfer to two-bedroom accommodation and her application would be dealt with in accordance with the law and the council's scheme. She had reasonable preference and Camden could do no more to get her into two-bedroomed accommodation. He submitted that arose not as a matter of fact but as a matter of law.

Mr Russell drew to our attention that the Act no longer put a person in the position that the appellant had to elect whether to accept an offer or seek a review. Section 202 of the Act enabled the appellant to accept the offer and also to seek a review. If the review decision was set aside, the appellant could succeed in persuading a subsequent reviewer that one-bedroomed accommodation was not suitable. The result, he submitted, would be that Camden would not have discharged their duty by providing one-bedroom accommodation. Mr Russell submitted that the result would put suitable pressure on Camden to provide two-bedroomed accommodation. There was, he submitted, no evidence that in those circumstances the appellant would in practice remain in the same position as if no order was granted.

Unfortunately, this issue was not dealt with by the judge. Counsel suggested that that it might be because it was not argued at the length in which it was in this court. However, I have not been convinced that on a re-review Camden will come to the same decision nor that nothing could improve the appellant's position. It is in my view Camden's duty to carry put the review properly, taking account of the facts at the date of the review which, if there is a subsequent review, could be very different to those which were considered in the other reviews.

Having not carried out a review which took into account the council's policy and the age of the appellant's son, I believe it is right that the decision should be quashed and Camden should have the opportunity to carry out a fresh review, which of course will take into account the facts up to the date of review. I would therefore allow this appeal.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE PETER GIBSON: Although we are differing from the decision of an experienced judge who has given a full and careful judgment, there is nothing which I would wish to add to the judgment of my Lord, Sir Williams Aldous, with which I am in full agreement.