Omar v Birmingham City Council

SIR ANDREW MORRITT, C: Lord Justice May will give the first judgment.

LORD JUSTICE MAY: There have been conflicting decisions in county courts on the two short related points which arise in this appeal, and we are told that there is a clutch of other cases awaiting its outcome. The points have been decided adversely to the appellant by Tuckey LJ, sitting as a single judge of this court upon an application for permission to bring a second appeal. The present appeal is in my view entirely technical and has no substantial merit.

Part VII of the Housing Act 1996 is concerned with homelessness. Sections 183 to 204A provide for homeless people to apply to a local housing authority for assistance; delineate the duties of local housing authorities in those circumstances; and provide for reviews of and appeals against decisions of local housing authorities. A full account of the structure of these sections may be found in the judgment of Buxton LJ in Crawley Borough Council v B (2000) 32 HLR 636. There has been a number of amendments to the statute since the decision in Crawley by the Homelessness Act 2002. This appeal concerns the amended version of section 193.

Section 202 of the 1996 Act gives an applicant for assistance the right to request a review by the housing authority of a variety of its decisions. Section 204(1) provides that an applicant who is dissatisfied with a decision on a review may appeal to the county court on any point of law arising from the decision. As Buxton LJ explained in Crawley, the statutory structure places the primary decisions on the local housing authority and any challenge to those decisions on an appeal has to be a public law challenge, as in judicial review. This accords with paragraph 7 of the opinion of Lord Bingham of Cornhill in Begum v Tower Hamlets London Borough Council [2003] 2 AC 430, [2003] UKHL 5, where Lord Bingham also emphasised the immense importance to homeless applicants of decisions by local housing authorities.

The defining section of Part VII of the 1996 Act is section 193. It applies, by section 193(1):

There are thus four considerations: homelessness, eligibility for assistance, priority need and intentional homelessness. For each of these it is the local housing authority that has to be satisfied or not satisfied. If section 193 does apply the local housing authority has, by section 193(2), a duty to secure that accommodation is available for occupation by the applicant, unless they refer the application to another local housing authority. The duty to secure accommodation under section 193(2) is sometimes referred to as the "full duty", although it is more properly referred to in Part VII as the "main housing duty". There are other lesser duties where a homeless applicant does not fulfil all the criteria in section 193(1).

By section 193(3) the duty subsists until it "ceases by virtue of this section." There are now eight circumstances in which section 193 provides that the local housing authority "shall cease" to be subject to the duty under the section. It will be necessary to refer to some of these in a moment. Section 193(9) provides that:

Whereas Part VII of the 1996 Act is concerned with homelessness and, in broad terms, with the need to accommodate fairly urgently those who are eligible and in priority need by securing them accommodation which may be temporary (see for this the decision of this court in Griffiths v St Helens Metropolitan Borough Council [2006] EWCA Civ 160, [2006] 1 WLR 2233), Part VI of the Act is concerned with the allocation by the local housing authority of housing accommodation on a more permanent basis. The accommodation may be owned by the local authority, although many local authorities no longer own residential council accommodation. This is the result of the policy of transferring council housing stock to registered social landlords, or because the council tenants have exercised their right to buy their council houses.

The Part VI accommodation may, as I think in this case, be in the hands of registered social landlords, with whom the local housing authority have nomination rights. It is well known that most local housing authorities have long waiting lists for Part VI accommodation, and that they operate allocation schemes for determining priorities (see section 167 of the 1996 Act).

The appellant Mr Omar was born on 6th April 1965. He came to the United Kingdom with his family in August 2004 as a European Community worker. He is married and has three young children, who were aged six, three and one at the date of the hearing in the county court. By a letter dated 30th January 2006 Birmingham City Council, the respondent to this appeal, the local housing authority, notified him that they accepted in a review decision that he was not intentionally homeless, he was eligible and in priority need, and the respondent accepted that they owed him the section 193 duty to secure that accommodation was available for his occupation. He was told that he would be made an offer in line with the respondent's current applications policy.

That offer was made by letter dated 7th March 2006, which said that he had been nominated by Bournville Village Trust for an assured tenancy of 30 Meaburn Close, Selly Oak, Birmingham. Bournville Village Trust, whom I understand to be a registered social landlord, wrote to him on the same day. I shall need to refer to the terms of the respondent's letter of 7th March 2006 in a moment.

Mr Omar refused the offered accommodation as being unsuitable, whereupon the respondent contended that they had ceased to be under the section 193 duty to provide accommodation.

By letter dated 11th April 2006 solicitors acting for Mr Omar indicated that he had refused the offer of accommodation. The reason given was that the property was wholly unsuitable for him and his household, on grounds which the letter described at some length. The grounds of unsuitability were summarised as being that the property was not suitable because of its location, the detrimental and severe impact that it would have on the welfare of the household, inevitably leading to their isolation from a supportive Arabic community. The letter requested a review of the suitability of the offered property under section 202 of the 1996 Act, and of the respondent's decision that they had discharged their duty under the terms of section 193. At this stage the only basis on which it was contended that the council had not discharged their duty was because it was said that the property was unsuitable.

The respondent's reviewing officer conducted a careful review and gave a decision upon it in a detailed four-page letter dated 5th July 2006. Much information had been gathered and was used in the letter to reach a conclusion that the offered property was suitable. That decision, and the decision that the respondent had discharged their section 193 duty, was upheld on this review.

Mr Omar appealed that decision to the county court. Her Honour Judge Swindells QC, sitting in the Birmingham County Court, dismissed the appeal on 24th October 2006, and this is Mr Omar's appeal against that decision with permission given by Lloyd LJ.

There were nominally five grounds upon which Mr Omar appealed to the county court against the review decision. Only two of them are pursued in this court. The three that are not pursued were ground 2, that the respondent acted unfairly in failing to put to the appellant material which it regarded as adverse to him on the issue of suitability; ground 3, that they failed to make adequate enquiry about his need for community support and fear of isolation; and ground 5, that the respondent had failed to give adequate reasons.

The two grounds of appeal which are in substance pursued in this court were ground 1, that the respondent's duty under section 193 was not discharged because they failed to comply with the literal terms of section 193(7A) of the 1996 Act; and that for this reason, ground 4, the decision that the duty had been discharged was irrational.

The circumstances in which a local housing authority, having a duty under section 193(2) to secure that accommodation is available for occupation by a homeless applicant, cease to be under that duty or are discharged from it are those in subsections (5) to (8) of section 193, which relevantly provide as follows:

Subsections (7C) to (7E) have further provisions about a qualifying offer of an assured shorthold tenancy, which include, at subsection (7C), that an applicant is free to reject a qualifying offer without affecting the duty owed to him under the section by the authority. The qualifying offer of an assured shorthold tenancy by a private landlord is not of course this case (for that see generally the case of Griffiths, to which I have referred).

Subsection (7F) of section 193 provides:

The relevant parts of the respondent's letter of 7th March 2006 were as follows:

Then, having informed the applicant of his right to request a review, the letter concluded:

The submission advanced on behalf of Mr Omar before the judge and maintained by Mr Nabi in this court is that this was a final offer of permanent accommodation under Part VI of the 1996 Act. For the respondent to cease to be subject to the section 193(2) duty the offer had to comply with subsection (7A), which provides that it has to be made in writing, which it was, and has to state that it was a final offer, which it did, "for the purposes of subsection (7)", which it did not. The letter, as I say, did say that it was a final offer, but did not add the words "for the purposes of subsection (7)"; although the offer did in fact comply with subsection (7) because Mr Omar was informed of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation. The letter also stated, as required by subsection (7F), if this was indeed a final offer of accommodation under Part VI for the purposes of subsection (7), that the respondents were satisfied that it was reasonable for Mr Omar to accept the offer. So, on Mr Omar's case, every substantive requirement of or relevant to subsection (7) was satisfied, but the respondent's ship sinks for want of the words "for the purposes of subsection (7)".

The judge rejected this contention for two reasons. First, she was satisfied that the respondent had made it abundantly clear that this was a final offer and that it was not necessary to go further and specify slavishly that it was made "for the purposes of subsection (7)". There was no prejudice to Mr Omar. Second, the judge held that the offer was in any event within subsection (5), whose lesser requirements were also complied with. Mr Omar had rejected an offer of suitable accommodation, he had been informed of the consequences of refusal and he had been notified that the respondent would regard themselves as having discharged their duty under the section.

Mr Nabi submits that the judge was wrong on both these points. He says that the words "for the purposes of subsection (7)" must be used because subsection (7A) says so in terms, and because, as at least one county court judge has held, they convey something which is important for the applicant to know. This is because the consequences of refusing a final Part VI offer of permanent accommodation may be different from the consequences of refusing an offer not within Part VI. The respondent's letter did incidentally spell out the relevant consequences in this case.

Mr Nabi says that this was not a refusal to which subsection (5) applied, because subsection (5) only applies to the refusal of an offer of temporary accommodation, or at least it does not apply to the refusal of a final offer of accommodation under Part VI, otherwise there would be no need for subsections (7) and (7A) at all. There are also additional requirements for a subsection (7) offer, that is that it should be a final offer under Part VI and that the local housing authority considers that it is reasonable to accept the offer. Mr Nabi submits that there was no doubt in this case but that the respondent were making a final offer of accommodation under Part VI of the Act, although they did not say so in terms in the letter. Mr Nabi says that prejudice is not relevant. It is simply a matter of complying with the mandatory requirements of the statute which have substantial effect.

In my view, it is first necessary to appreciate that Part VII of the 1996 Act is concerned with homelessness and that section 193 is concerned with a duty to relieve homelessness, not with the provision by the local housing authority of secure permanent accommodation. The case of Griffiths concerned the refusal by a homeless applicant of a suitable but temporary assured shorthold tenancy by a private landlord made not by means of a qualifying offer. The argument, rejected by this court, was that this was not a refusal which discharged the local authority's section 193 duty under subsection (5). In this context my judgment said, at paragraphs 34 and 35:

In the present case the offer made no express reference to Part VI of the 1996 Act but contained three express references to Part VII, indicating to my mind that the first purpose of the offer was indeed to relieve Mr Omar's homelessness. It may be that the offer was in fact capable of being an offer within Part VI, but the letter did not say so.

I accept of course that subsection (7A) is expressed in mandatory terms, but I do not in any event accept that literal slavish repetition of the exact words of the subsection is an immutable statutory requirement when, as in this case, every single matter of substance which the statute requires was expressly contained in the letter, including that required by subsection (7F), if indeed it was a final offer of accommodation under Part VI. In the context of section 193, the explicit reference to a final offer could only mean that it was an offer within Part VI and for that reason it may be possible to say that subsection (7A) was indeed, as a matter of construction, complied with.

In any event, the mere addition of the words "for the purposes of subsection (7)" told the homeless applicant nothing useful in this case. What the homeless applicant needed to know was that the local housing authority considered the offered accommodation to be suitable, and that it was reasonable for him to accept the offer and the possible consequences of refusal. I find support for this view in Slater v Lewisham London Borough Council [2006] EWCA Civ 394, [2006] HLR 37, where the question was whether subsection (7F) had been sufficiently complied with. Ward LJ (with whose judgment Sir Martin Nourse and Sir Charles Mantell agreed) said at paragraph 32 that he did not suggest that the wording of the communication must slavishly follow those forms of words, but it must convey both points (see also Tower Hamlets Borough Council v Rahanara Begum [2006] HLR 9 at paragraph 27). The letter in the present case conveyed everything which mattered to the homeless applicant.

Even if that were wrong, I am quite clear that the judge was correct to hold that Mr Omar's refusal of the offer of 7th March 2006 was or would have been a refusal within section 193(5). If it was not a refusal within subsection (7) for want of the statutory words in subsection (7A), there is no duplication of statutory purpose to impede it being within subsection (5) as a fallback unless, as Mr Nabi submits, subsection (5) is incapable of applying to a final offer of permanent accommodation, but is only capable of applying to an offer of temporary accommodation.

Miss Rowlands suggests in writing that Griffiths is authority to the contrary. She points to paragraph 32 of that judgment, where it is said that it was acknowledged that the duty of the local housing authority under section 193(2) does not require them to secure that permanent accommodation is available for an applicant and that section 193(5) is capable of embracing an offer of temporary accommodation, the implication being that it is not limited to temporary accommodation. In paragraph 38 I said:

There was certainly no suggestion in Griffiths that section 193(5) was limited to temporary accommodation, but the point was not in issue in that case.

The ironic point for present purposes is that historically, under legislation which preceded the Housing Act 1996, it had been thought that a local housing authority's duty to an unintentionally homeless person in priority need under section 65(2) of the Housing Act 1985 was to secure the permanent or secure accommodation was available for his accommodation. But the House of Lords had held in R v Brent London Borough Council, ex parte Awua [1996] AC 55 that this was not so (see also paragraph 4 of the judgment in Griffiths). The House of Lords did not hold the converse and there is nothing whatever in the wording of section 193(5) to suggest that it is limited to the refusal of an offer of suitable temporary accommodation. It would indeed be a strange, if not absurd, construction of section 193 as a whole if the refusal of an offer of suitable temporary accommodation discharged the local housing authority's duty to the homeless applicant, but the refusal of an offer of suitable permanent accommodation did not when in each case the other requirements of subsection (5) were complied with.

Mr Nabi had the to my mind surprising supplementary submission that a Part VI offer which was not final did not fall within section 193 at all. I would summarily reject that submission.

I do not have any difficulty in holding that the refusal of the offer in this case came within section 193(5) of the 1996 Act, if it did not come within section 193(7). Tuckey LJ was similarly untroubled when he refused permission to appeal against another decision of Her Honour Judge Swindells QC in Amin v Birmingham City Council [2006] EWCA Civ 1059. Further, there is something of a parallel between this case and Griffiths, in that each has encountered submissions arising from amendments to section 193 of the 1996 Act made by or in connection with the Homelessness Act 2002, which in the result are said to have affected the clear meaning of section 193(5).

For these reasons, I would dismiss this appeal.

LORD JUSTICE LLOYD: I agree that the appeal should be dismissed. I would base my decision on the second ground adverted to by my Lord in relation to section 193(5). It seems to me, for all the reasons that he has given, to which I wish to add nothing, that in the case of an offer which is expressed as a final offer under Part VI or which, even though not so expressed, is a final offer under Part VI, if such an offer does not on its being refused fall within the terms of subsection (7), then it is nevertheless capable of falling within the terms of subsection (5), so long as the requirements of that subsection are met, as they were in this case.

As regards the other point, namely whether this refusal did fall within subsection (7), I agree with my Lord that it is a point of the utmost technicality. The letter by Birmingham City Council of 7th March 2006, from which my Lord has quoted all the material parts, is very clear as to the status of the offer and as to the consequences of refusal. It seems to me to be an admirable form of letter. In particular near the beginning of the letter it says in a very short, simple clear sentence, expressed in bold, "This is your one and final offer." The letter making an offer is made in writing. It states that it is a final offer. What, I ask myself, would be the point of going on to say that it is a final offer for the purposes of subsection (7)? It seems to me that to include those rather legalistic words in a letter whose primary function is to convey something of practical significance to the applicant for accommodation might tend to cause confusion, rather than clarity.

Mr Nabi, in his able and succinct submissions to us, suggested that the point was not so much to communicate anything to the applicant, but to raise a flag which would be apparent, if not to the applicant then at any rate to whatever adviser the applicant might seek to obtain assistance from, in either a statutory review, to which the applicant is entitled, or on a subsequent appeal to the county court. It seems to me that if that was its purpose, it is not a very effective way of achieving that purpose. Accordingly, I find it difficult to see what is the point of those last words of subsection (7A).

Nevertheless, Mr Nabi submits that the subsection plainly says that the offer must be in writing, and no one would suggest that an offer not in writing could comply with the section. It plainly requires that it must state that it is a final offer, and I have no doubt it is right that no one would suggest that an offer which is not expressed to be a final offer would satisfy the subsection. Why then, he asks, can it be permissible to dispense with the last requirement of the subsection, that the offer must state that it is a final offer for the purposes of subsection (7)? I find myself puzzled by that statutory requirement and, although I can see no particular point in it, I hesitate to decide the case on the basis that it is unnecessary to comply with that part of the subsection in order that the consequences under subsection (7) should follow. It seems to me that although the applicant was told everything that he needed to be told, it may be that the Act does, for some reason which I have been unable to discern, require that the point should be hammered home by these rather legalistic words.

Be that as it may, it seems to me that if the offer fails to satisfy subsection (7) because of the omission of that little bit of legalistic phraseology, it nevertheless is capable of satisfying, and did satisfy, subsection (5). On that ground, it seems to me that the appeal must fail.

SIR ANDREW MORRITT, C: I also agree that the appeal should be dismissed, and I so agree for all the reasons given by Lord Justice May.