Ahmed v Leicester City Council

This is an appeal against a judgment of HHJ Mayor QC given at Northampton County Court on 8 September 2006. An appeal to that court by Ms Anna Ahmed (“the appellant”) under section 204 of the Housing Act 1996 (“the 1996 Act”) against a decision of Leicester City Council (“the Respondents”) was dismissed by the judge and this is an appeal against that decision. Permission to appeal to this court was refused on a consideration of the papers by Neuberger LJ but was granted by Sir Paul Kennedy following an oral hearing. The respondents owned the appellant a duty under section 193 of the 1996 Act; that is the duty to persons with priority need who are not homeless intentionally. By letter dated 16 August 2005, the respondents offered her accommodation at 25 Limber Crescent, Leicester, a four-bedroomed house in North Braunstone. It was intended to be a final offer of accommodation within the meaning of section 193(7) of the Act. After her first visit to the premises the appellant on 17 August 2005 signed a pro forma document which stated, “I am interested in this property and would like it reserved for me”. However, she revisited the premises in circumstances which will be described and, having been interviewed by a representative of the respondents, the appellant refused the offer on 16 September 2005.

By letter dated 29 September 2005 the respondents told the appellant that, following the refusal, their statutory duty to the appellant was discharged. On 20 October the appellant exercised her right under section 202 of the 1996 Act to request a review of that decision. The request was made in a detailed letter from her solicitor. In an equally detailed letter dated 28 April 2006 the reviewing officer stated that the accommodation was:

Section 193(7F) of the 1996 Act provides:

Permission to appeal has been granted on two grounds. First:

For the appellant, Mr Preston realistically acknowledges that if he fails on the first ground he has no real prospect of success on the second. The application to the county court was supported by a witness statement from the appellant, who was represented then by Mr Preston. When dismissing the appeal the judge stated, having considered the wording of the subsection and its use of the expression ‘suitable and reasonable’:

No complaint was made by the appellant about the suitability, by way of size, of the accommodation at the premises. The reason given for refusing the offer was a perceived fear of violence against the appellant and her family and of damage to the property if she lived in it. The appellant is a single mother with three young children and is of Somali origin. When she refused the offer on 16 September 2005 the appellant had not provided the respondents with a written statement. She was not legally represented at the time. We have a note of her interview on that day:

In the solicitor’s letter of 20 October 2005 a more detailed account was given of conditions which were claimed to have existed when the appellant visited the premises:

The respondents conducted a review, as they were required to do, and it was a most detailed review. It included detailed enquiries of two other Somali women who had been named by the appellant as having suffered ill-treatment in the area. Extensions of time were sought by the respondents while enquiries were made from other sources. Notifying the appellant of the outcome of the review, the respondents in their letter of 28 April 2006 stated that the reviewing officer accepted:

Mr Carter on behalf of the respondents concedes that the acceptance includes acceptance of the account given in the solicitor’s letter, which is of conduct somewhat more serious than that which had been given at interview in September 2005. The statement prepared for the hearing in the county court painted an even bleaker picture but that of course was not available to the reviewing officer and plays no part in the decision of this court. Having made those concessions the decision letter sets out the representations made by and on behalf of the appellant. Reference is made to Miss Hussein and Miss Abdullah mentioned by the appellant. Both statements from Miss Hussein and Miss Abdullah catalogue their experiences of incidents that have occurred between August 2004 to September 2005:

Referring to comparative enquiries, the letter goes on to state that there are higher figures for reported incidents of conflict in the New Parks and Beaumont Lees area than that shown for Braunstone. Moreover, reference to harassment reports on grounds of race, ethnicity, national origin and other grounds in the areas of Beaumont Lees, New Parks and Saffron are said to have recorded higher numbers than Braunstone:

The reviewing officer gave reasons for her decision:

The point raised in this appeal is a narrow one. It is forcefully submitted by Mr Preston that the question which the decision maker and the reviewing officer should have asked was whether it was reasonable for the appellant to accept the offer, making that decision only on the basis of what she knew or ought to have known on 16 September 2005. The respondents should have regard only to what the appellant knew or ought to have known at the time her decision. It was put in this way in the written submissions of Mr Preston:

In support of the submission, reliance is placed on the dual nature of the test in subsection (7)(f) with its references to “suitable” and to “reasonable”. It is submitted that the suitability test is an objective one and the reference to reasonableness is otiose unless it is construed in the way advocated by Mr Preston. Reference has been made to the decision of this court in Slater v Lewisham LBC [2006] HLR 3, which has been the subject of detailed scrutiny by counsel. Both parties rely on the case. It was a case where the local authority had refused an application similar to the present one but the county court had reversed that decision. Miss Slater, when aged only 17, had met a 21-year-old man, W, and established a relationship with him. The relationship became tempestuous with violence, it was claimed, on W’s part. Two children were born of the relationship. There is evidence of W having broken into the flat where Slater was living following the birth of her first child and of other serious violence by him against her. After the birth of the second child she requested different accommodation and rejected the offer which was made to her, stating that she had a problem with the baby’s father and she would not feel safe in the area concerned because of his likely presence there. In the course of a review, considerable further evidence became available on that question, the likelihood of his presence in the area.

When giving the leading judgment, with which Sir Martin Nourse and Sir Charles Mantell agreed, Ward LJ considered the construction of section 193(7F) of the 1996 Act. He considered the presence of the two words “suitable” and “reasonable”. In paragraph 29 he cited Lord Hoffmann’s observation in R v Brent LBC ex parte Alwua [1995] 27 HLR 453, at 464, that suitability is primarily a matter of space and arrangement, though no doubt other matters may also be material. Having considered the homelessness code of guidance for local authorities, Ward LJ stated that there were two stages to the test. Paragraph 30:

On behalf of the respondents, Mr Carter accepts that there is a two-stage test to be applied. Ward LJ went on to consider the test to be applied in relation to the word “reasonable”. He stated at paragraph 34, citing earlier authority:

Ward LJ went on to analyse the evidence available to the reviewing officer. He referred to evidence from Miss Slater, and to the results of enquiries by the local authority. He then posed the question: “What would a right thinking housing authority make of this evidence?” Ward LJ stated:

It followed that the decision of the county court judge was upheld. This court is bound by the decision in Slater and the test applied. I add, however, that I respectfully agree with the approach adopted by Ward LJ and with the test he propounded. I have stated the central submission Mr Preston makes. He also places reliance on the emphasis which Ward LJ gave to this applicant and this accommodation as supporting, he submits, a subjective test on reasonableness. He relies on the last sentence of paragraph 45 and the use of the word “reasonableness” by Ward LJ in that context. He further submits that even if the correct test was applied, the decision letter did not adequately consider the particular situation of the appellant and the beliefs and fears which could arise from it.

I am unable to accept either of those submissions. I deal first with the reliance on the dual nature of the test, which does not in my judgment assist the appellant. The use of the word “reasonable” is not otiose on either view of the meaning of reasonable and I agree with the approach of Ward LJ. On either view, a consideration of the reasonableness of a decision may arise after the suitability of the premises has been considered. Factors personal to an applicant may not have been considered at an earlier stage. It is not disputed that the respondent was entitled to have regard to evidence which emerged in the course of the review, both from the appellant and from other sources, but only for the limited purpose -- as Ward LJ put it -- of whether it throws light on the reasonableness of her state of knowledge and belief at the time of her decision to refuse.

In my judgment, the decision letter correctly applied the test stated in paragraph 34 of Ward LJ’s judgment. The characteristics of this applicant were considered, what Ward LJ called the “individual aspects”. She was Somali, a single parent with a heightened sense of likelihood of being a victim of violence. The reviewer then considered whether it was reasonable for the applicant to accept the offer. She applied an objective test, based on all the available evidence as to the reasonableness on the appellant’s decision. Considerable evidence has emerged as to conditions in Braunstone and their likely impact, or lack of impact, on the appellant.

A belief may be genuinely held without being a reasonable belief within the meaning of the subsection. The genuineness of a belief in the existence of a state of affairs is not conclusive. If the evidence available to the local authority entitles a right thinking local authority to consider that the belief which led to the decision not to accept was not objectively a reasonable one, it is entitled to be satisfied that it was reasonable for the appellant to accept the offer. On 16 September 2005 the appellant may have genuinely feared for her safety and that of her family if she accepted the offer. For present purposes I accept that her fear was genuine. The evidence summarised in the decision letter demonstrated, at least to the extent of permitting a right thinking authority to reach the decision this one did, that the fear was not a reasonable one and that it would have been reasonable to accept the offer.

I consider the reliance sought to be placed on the last sentence of paragraph 45 of Ward LJ’s judgment. Ward LJ stated that the respondents were entitled to have regard to subsequent information but:

For those reasons I would dismiss this appeal. The only ground of appeal is a limited one and it fails. In the course of argument consideration was given to the procedure followed by the local authority in this case. There was a conspicuous lack of dialogue during the review procedure. It may be that that is inevitable when the house, following refusal, has already been re-let so that no live issue remains as to the applicant’s intentions and the only issue is whether the offer discharged the respondents’ duty under section 193.

Mr Carter points out that there is no statutory obligation to consult when enquiries are made. However, it is notable in this case, first, that the reviewing officer accepted that the enquiries of the decision maker had been insufficient in the circumstances and, second, she accepted the account of events in August 2005 which had been given by the appellant. I express no opinion as to whether there should have been further consultation in this case. The court is not aware of the full circumstances as to what had happened to the house, and the point has not in any event been fully argued. However, there may be cases where matters which arise on the review are such that they can only fairly be resolved if there is some dialogue between the reviewing officer and the applicant. It may be relevant to the assessment of the reasonableness of the decision which the applicant had taken.

For the reasons I have given, I would dismiss this appeal.

The question here is whether the only conclusion that Leicester could draw from the evidence available to it was that it was reasonable for Mrs Ahmed to have accepted the offer of housing which it had made. If so, there was an error of law in the conclusion to the contrary of the reviewing officer under section 202 of the Housing Act 1988 and the conclusion was erroneous in law and consequently must be set aside.

Mr Preston, for Mrs Ahmed, submits in effect that the local authority had to consider the reasonableness of Mrs Ahmed’s refusal of its offer of housing on the facts as Mrs Ahmed believed them to be or ought reasonably to have known them. For this proposition he relies on the decision of this court (Ward LJ, Sir Martin Nourse and Sir Charles Mantell) in Slater v Lewisham LBC (2006) HLR 37 and particularly paragraphs 34, 45 and 49 in the judgment of Ward LJ, with whom the other members of the court agreed:

the preponderance of the evidence is that Damian did stay from time to time at Vansittart Street, but even if one puts it at its lowest and draws only the conclusion that it was uncertain whether he had a connection with that property, that would not permit the conclusion that Ms Slater’s belief was unreasonable. She had ample material to support her belief.

The fact of his change of residence to West Sussex in May 2005 could not bear upon her belief that he was still on his old stamping ground at the material time.

Having discounted those two matters the only reasonable conclusion must be that her fear that he frequented the New Cross area and that she was at greater risk in there was a reasonable one and it justified her decision to refuse to live in the very area she had asked the authority to avoid for her peace of mind. On that evidence (which the judge described as “overwhelming”) no reasonable authority could conclude that it was within the band of reasonable band of decisions to find that her belief that she would be at greater risk in New Cross Gate than elsewhere in the borough was an unreasonable belief.”

I start by looking at paragraph 45. That paragraph, properly read, is focussing on the time at which the question of reasonableness has to be assessed. That is a different question from the one with which we are confronted in that case. It is in my judgment clear that what the court was looking at in the Slater case was the state of the applicant’s knowledge and belief and the end object of so doing was to assess the reasonableness of that knowledge and belief. Nothing, as I see it, is said about having to look at that question from the perspective of someone in the position of the applicant. That approach in my judgment is confirmed by the penultimate sentence of paragraph 34 where Ward LJ, having referred to the personal characteristics of the applicant and for the need for the review officer to take those into account, had called those factors “subjective factors”, says that the next task is to ask, “Whether it is unreasonable, an objective test, for the applicant to accept”. Nothing is said about applying that test from the point of view of the applicant. When Ward LJ refers to taking into account individual aspects, he is referring to the need to investigate those matters which arise by virtue of the individual characteristics of the applicant. He is not saying that those matters are the only matters to be taken into account and assessed.

The high water mark for the appellant’s case of this appeal is paragraph 49. There the court is assessing on the facts the question of the reasonableness of the refusal of the applicant in that case to accept the offer of housing which had been made to her. The court clearly dealt with this on the basis of the applicant’s belief in that case. There is reference in all three sub-paragraphs to the reasonableness of the applicant’s belief. Now this is, as I have said, the high water mark as I see it of the appellant’s case. But the answer in my judgment is that the Slater case has to be read in the light of its own facts. Frankfurter J once said “facts and facts again are decisive” 37 Marr L Rev 1002, 1005. That is a feature of common law method and this case precisely illustrates that. The issue in the Slater case is as to which of the conflicting views as to the whereabouts of the applicant’s partner was correct. There were conflicting views as to whether he was to be found in the New Cross area where housing had been offered. There were no or very few hard facts about his whereabouts. So the issue boiled down to one of conflicting beliefs as to where he was as to whether he would find the applicant if she resided in New Cross.

That case is not, as I see it, authority for saying that in every case the housing authority has to consider the reasonableness question from the perspective of the applicant and thus of the basis of the facts as she knew or ought to have known them. In particular, as I say, it is not the appropriate approach here. I agree with Pill LJ, that in general the court will be looking at the reasonableness of acceptance or refusal of the housing offer on an objective basis, and that is the proper reading of paragraphs 34 to 45 of the judgment of Ward LJ. Here, by contrast, the issue was one of the risk of violence or racial harassment. That involved an investigation of allegations of hard-edged facts: namely, what had happened in the past and the risk of harassment in the future. There is no room in this sort of case for beliefs not based on an assessment of all the available facts. To say that in this sort of case reasonableness would have to be assessed on the facts as the applicant understood them to be or ought to have understood them to be would in my judgment involve writing words into section 193(7F), and there is no statutory direction that in all cases facts must be looked at from the perspective of the applicant. If that was so, then, as Lawrence Collins LJ said in argument, it would be difficult for the housing authorities to perform their functions. They would have to investigate precisely what it was that the applicant understood the facts to be. The subsection does use the words “for him”, but that emphasises that the court is not to take a hypothetical case but the actual perspective of the tenant. That is the import of the words “for him” in section 193(7F), and that meaning is confirmed by what Ward LJ said in paragraph 34 of his judgment as set out above. The statutory question is whether it is reasonable to accept the offer; and accommodation can be suitable and yet, as Pill LJ has explained, it may be unreasonable to accept the offer. That is confirmed by section 193(8), which contemplates that it may be unreasonable to accept an offer of housing because the applicant is under a tenancy for other accommodation which he cannot terminate within the time he has been given to accept the offer. It might also arise, as Pill LJ has explained, if the applicant was subject to prolonged hospitalisation. These examples suggest that the requirement of reasonableness operates as a safety valve for a relatively exceptional case. If that is right, it would tend to support the conclusion that Parliament did not intend that there should be other than an objective test in assessing reasonableness on a refusal.

Finally, I would like to make an observation standing back looking at this case generally. Housing authorities should consider their procedures in the light of Mrs Ahmed’s case. As I said in R (Elias) v Secretary of State for Defence [2006] IWLR 3213 at [263], one of the great social challenges of the day is to ensure equality for all persons in accordance with the law. Through these housing cases, of which this court sees very many, the court is aware of the difficult decisions which local authorities are called upon to make. Local authorities have a very important role to play in society and in particular in making areas within their responsibility harmonious and places where people want to live. It may be that if they were to provide applicants of minority ethnic groups or vulnerable groups with more information and assurance about the authority’s policy on harassment, and the facilities available should any harassment occur, this may help in preventing this sort of case reaching the courts. I also agree with Pill LJ about the desirability of some dialogue between the reviewing officer and the applicant. That may be relevant in future cases. Finally, I agree with Pill LJ that the order on this appeal should be for dismissal.

I have every sympathy for Mrs Ahmed but I also agree that the appeal should be dismissed. The reviewing officer devoted several paragraphs of her decision to Mrs Ahmed’s fears of violence and took full account of them in answering the statutory question and in coming to the conclusion that she the reviewing officer was satisfied that the accommodation was suitable and that it was objectively reasonable for Mrs Ahmed to accept the offer. The reviewing officer had not taken account of any impermissible matters and there was no error of law.