Muse v London Borough of Brent

This appeal raises the question whether a housing authority’s duty under s 193 of the Housing Act 1996 (“the 1996 Act”) to provide housing for a homeless person is discharged if she declines alternative temporary accommodation. The housing authority had here accepted that it was under a duty to secure accommodation for the respondent, Mrs Muse, and her family, and it secured temporary accommodation for her. But, as her family grew, that accommodation became overcrowded. The housing authority offered alternative accommodation but Mrs Muse declined to move, preferring to stay in her overcrowded accommodation. The housing authority now contends that, by virtue of the provisions of s 193, its duty to Mrs Muse to provide accommodation is now discharged. In my judgment, although this is a very harsh conclusion to reach, that contention is correct for the reasons given below and the decision of the county court to the contrary must be set aside.

At the relevant time, s 193 of the 1996 Act provided as follows:

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally…

Unless the authorities refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

S 193 has now been amended by the Housing and Regeneration Act 2008, but the amendments have not yet come into force and they do not appear to make any difference to the question in issue on this appeal.

The facts that occurred in this case are probably not uncommon. In England and Wales there is considerable demand for public housing. I said in R (Aweys) v Birmingham City Council [2008] EWCA Civ 48; [2008] 1 WLR 2305:

Parliament has enacted detailed legislation to regulate the rights of the homeless, who are those in greatest need. Homelessness is widely defined. It includes not only those who are without any home but also those who live in homes which it is not reasonable for them to live in. On the other hand, there are conditions for eligibility for assistance by a housing authority. A person may be ineligible for housing assistance if he is subject to immigration control. There is also an important restriction laid down by Parliament that a person should not be, or become, intentionally homeless. Accordingly, the benefits of public housing are not extended to the entire group of the homeless, however great their needs.

The detailed legislative scheme to which I have referred is in Part VII of the Housing Act 1996, as amended (“the 1996 Act”). It is not necessary for me to summarise the whole scheme. The duty to assist the homeless is imposed on housing authorities. The process of invoking their duty starts with an application by the person who contends that he is homeless. The housing authority must make a decision on this application. By virtue of s 193(2) read with s 176, if the housing authority is subject to a duty to provide accommodation, it must ensure that accommodation is provided for the homeless person and for other members of his family or other persons who may reasonably be expected to reside with him (s 176).

Although s 193(2) does not define the type of accommodation to be provided by the housing authority, this court held in Aweys that it must fulfil the requirements of s 175(3) of the 1996 Act: and accordingly it must be

However, the accommodation need not be permanent accommodation: R (Awua) v Brent London Borough Council [1996] AC 55. This deals with the statutory scheme as then set out in the Housing Act 1985, which contained inter alia a provision in the same terms as far as material as s 193(2) of the 1996 Act. As Lord Hoffmann in that case explained at page 68:

Where there is great shortage of permanent accommodation, an applicant may spend many years in temporary accommodation. Sometimes the circumstances of the applicant will change, but, save where s 193(9) applies, there is no statutory provision for a fresh application to be made if the personal circumstances of the applicant change. In practice, applicants tell the housing authority of any relevant change. If a change makes existing premises unsuitable, the duty of the housing authority is to find fresh accommodation that is suitable. The housing authority has a duty to provide or secure suitable accommodation (s 206(1)). Suitability is defined in s 210 of the 1996 Act, but we are not concerned with the provision.

Finding temporary accommodation for an applicant does not discharge the duty of the housing authority. However, the duty is discharged if the applicant is offered temporary accommodation but ceases to be eligible for assistance, or becomes homeless intentionally from that accommodation, or finds permanent accommodation, or voluntarily ceases to occupy the accommodation made available to him as his only or principal home (s 193(6)). The housing authority also ceases to be subject to a duty to the applicant in the circumstances set out in s 193(5) (set out above), and they are said to be the circumstances which are applicable in Mrs Muse’s case.

In this case, the housing authority is the London Borough of Brent (“Brent”). They accepted a duty to provide housing for Mrs Muse. Brent did this by securing a tenancy for Mrs Muse with a registered social landlord, which I shall call SHA. Mrs Muse then had further children, and the accommodation secured by Brent became overcrowded. Brent offered Mrs Muse accommodation in place of that accommodation. She refused it. Brent took the view that it had followed the procedure in s 193(5) and that accordingly it had discharged their duty. The reviews officer of Brent upheld this decision pursuant to s 202 of the 1996 Act. Mrs Muse appealed to the county court pursuant to s 204 of the 1996 Act, which permits appeals on a point of law only. By his order dated 4 April 2008, HHJ Powles QC, sitting in the Willesden County Court, upheld Mrs Muse’s appeal. The issue for this court is whether the reviews officer made an error of law or whether he was entitled to find that Brent’s duty to provide accommodation to Mrs Muse has been discharged. Before I go to this point, I must set out the background in more detail.

On 13 May 2002, Brent notified Mrs Muse that it was satisfied that it owed her a full housing duty under Part VII of the 1996 Act. Pursuant to that duty, Brent offered Mrs Muse temporary accommodation at various addresses, including ultimately, in 2003, Flat 42, Press House, Press Road, Neasden, London NW10. Mrs Muse entered into a tenancy agreement with the landlord, Stadium Housing Association Ltd (“SHA”). At that stage Mrs Muse had one child and in 2004 she gave birth to her second child. On 23 June 2006, SHA wrote to Brent stating that in view of the arrival of a third child there was overcrowding in flat 42. They asked for Mrs Muse to be reallocated into band A. We have not been shown the housing allocation scheme for Brent but we are told that a number of housing authorities in London, including Brent, combine in one scheme, the Locata scheme. Under this scheme, properties are allocated to applicants within band A because they are persons with the greatest need.

There is a note endorsed by Brent on the letter from SHA which states:

A transfer request was then made and submitted to the homeless persons’ officer of Brent. By letter dated 18 July 2006, he wrote to Miss O'Connor (of SHA):

On 15 August 2006, Mrs Muse's solicitors wrote to Brent with a request as follows:

The letter set out the personal circumstances of Mrs Muse and continued:

By September 2006 Mrs Muse was offered premises at Greencrest Court but these were subsequently withdrawn as unsuitable for her. She was asked to provide some medical information. On 15 September 2006, Mrs Muse was offered further temporary accommodation at 59A Chaplin Road, Willesden, London, NW2. However, Mrs Muse refused to take this accommodation on 4 October because she said it was unsuitable for her. Brent made her a further offer of the same accommodation on 5 October, giving her until 9 October 2006 to accept. The letter of offer stated that if she failed to take the accommodation, Brent would conclude that it had discharged its statutory duty to her. The letter added:

I shall need to return to this passage. We are told that, in practice, Brent is able to pay more in housing benefit for the homeless in temporary accommodation to whom it owes a housing duty. That means that, if the housing duty terminates, housing benefit will be paid at a lower rate and arrears may accumulate. The housing association may then acquire grounds to seek the eviction of a tenant if the rent is not paid.

On 6 October 2006, Mrs Muse’s solicitors wrote again to Brent. They contended that Mrs Muse’s refusal of temporary accommodation at Chaplin Road could not entitle Brent to discharge its statutory duty. They added:

On 10 October 2006, Brent replied:

Brent then extended the deadline for accepting Chaplin Road to 13 October 2006 at 12 noon. This was done by a further letter warning Mrs Muse that if she did not take this accommodation Brent would conclude that it had discharged its statutory duty to her and she would cease to be able to occupy temporary accommodation provided by Brent. This information was repeated in block letters at the end of the letter. However, Mrs Muse did not take the accommodation at Chaplin Road.

Brent considered the position and on 17 October 2006 wrote to Mrs Muse stating that it considered that the housing duty was now discharged. It also stated that it would instruct the housing association to commence eviction proceedings. This was inaccurate for the reasons that I have already given. It is wholly regrettable that this would have been stated in that letter.

On 25 October 2006 Mrs Muse's solicitors wrote again to Brent requesting a review of the decision on the grounds that section 193(2) did not apply to Mrs Muse. By letter dated 9 March 2007, Mr Minos Perdios, reviews officer, gave his decision that the s 193 duty had terminated. He rejected Mrs Muse’s representations that their property at Chaplin Road was unsuitable. He found that she had been properly informed of the consequences of refusing to accept a suitable s 193 offer. He stated that:

One of the reasons why Mrs Muse wanted larger accommodation was so that she could live with her husband. Brent took the view that it was a violation of her human rights not to secure accommodation for her that enabled her to live with her husband.

As a result of the review decision, Mrs Muse made an application to the County Court pursuant to s 204 of the Housing Act 1996. That application came before the judge.

The judge summarised the principal argument of Miss Roberts, who appeared for Mrs Muse before the judge and before us, as follows:

Miss Roberts cited the decision of this court in Griffiths v St Helens MBC [2006] EWCA Civ 160; [2006] 1 WLR 2233. The judge held that this case did not assist because it did not decide whether, in circumstances such as these, the duty owed to Mrs Muse had been discharged when she was offered temporary accommodation. However, in his judgment, the duty had been discharged at this point:

Miss Roberts had an alternative argument. She contended that, if she was wrong on her principal submission and s 193(5) applied, there had been procedural unfairness in that, when Mrs Muse made her application to transfer, she should have been informed that if in consequence, she was offered alternative accommodation, which she did not like she could lose even her existing accommodation. Mr Carter, who appeared for Brent before the judge and now appears for Brent before us, submitted that Brent could not leave her where she was. The judge rejected Mr Carter’s argument:

On this appeal, Brent contends that the judge was wrong in holding that Brent was no longer subject to the duty under s 193(2) and in holding that Brent was required to give Mrs Muse the choice of accepting the new premises or remaining at 42 Press House.

Mr Carter, for Brent, advances two propositions on the meaning and application of s 193(5), which I will call the wider and the narrower proposition respectively. The wider proposition is this. Once a duty arises, it continues until it ceases. It does not go into abeyance or become dormant. If the applicant is in temporary accommodation she can at any time be asked by the housing authority, in this case, Brent, to move to other accommodation. Moreover, on his submission, if the person to whom the duty is owed is occupying accommodation belonging to a private landlord, it follows that the housing authority can ask the private landlord to give her notice seeking possession if it wishes her to vacate the premises. (Although not expressly so stated by Mr Carter, this may be a reason for Brent writing as it did to the landlord on 10 October 2006 as set out above). Mr Carter accepts that some form of notice must be given and that the notice must be reasonable. Mr Carter relies on policy considerations. Brent needs to be able to move homeless applicants to alternative temporary accommodation to manage their temporary accommodation efficiently and economically. On his submission, Brent can move applicants provided their decision is not Wednesbury unreasonable.

Mr Carter's narrower proposition is that, when Brent became aware that Mrs Muse was in unsuitable accommodation, it became obliged to offer her suitable accommodation and thus its duty would cease if it made her an offer complying with s 193(5), which she refused.

Mr Carter submits that the judge's interpretation leads to absurd results. It involves saying that the duty had been fully discharged at the time of the offer of 42 Press House. He further submits that section 193 provides a comprehensive code for discharge.

Miss Roberts responds to Mr Carter's arguments by submitting that s 193(5) can only apply if the temporary accommodation has become unavailable. She relies on the judgment of May LJ (as he then was) in Griffiths, particularly at [34]:

Miss Roberts submits that in that passage May LJ had divided the circumstances in which a housing authority ceased to be subject to a duty into three groups, and that there is only one category arguably relevant here, namely the second group, and that is because the respondent refused to accept the offer. However, at the time of the refusal, Mrs Muse was not homeless.

For the reasons that follow, I reject Miss Roberts’ submission on s 193(5). The answer in my judgment lies closer to the narrower proposition of Mr Carter. (It is thus unnecessary to deal with his wider proposition). When Mrs Muse was originally provided with suitable temporary accommodation at 42 Press House, the duty owed by Brent was discharged and she ceased to be homeless. It is a nice point whether the correct legal analysis is that the duty is then fully discharged. In Awua, Lord Hoffmann counselled against analysis in these terms at pages 71-72::

The need to avoid over-sophisticated analysis may have been what May LJ had in mind when in the course of [22] of his judgment in Griffiths he observed:

As Lord Hoffmann explains in Awua, if it becomes unreasonable for the tenant (the formerly homeless person) to occupy the accommodation provided for him, he once again becomes homeless. At a later stage in his speech, Lord Hoffmann contemplates that such a person would make a fresh application:

No particular form of application is required. When a homeless person makes an application, the housing authority must make such enquiries as are necessary to satisfy themselves as to what duty is owed to that person (s.184). The authority must then give the person notice of their decision.

No submissions were made to us on Awua, but it would appear to be the case from Awua that the duty owed to Mrs Muse was discharged in law on the provision of temporary accommodation, but arose again when Brent decided that it was not reasonable for Mrs Muse to continue to occupy 42 Press House. If, however, the duty accepted to her in 2002 had been never fully discharged in law (as Mr Carter submits) because only temporary accommodation was provided, it remained in being and become operative again at the latest when Brent decided that it was not reasonable for her to continue to occupy 42 Press House, as it did when Mr Rees accepted that she should be offered alternative accommodation. None of the specific events that under s 193 discharged the duty occurred. It is common ground that 42 Press House was not suitable for Mrs Muse and her family.

On either basis, Brent was obliged to, and did, offer alternative suitable accommodation. Brent complied with s 193(5). Accordingly, the offer was on terms that Brent’s housing duty would be discharged if Mrs Muse declined to accept the alternative accommodation. If Miss Roberts' submission on s 193(5) were correct, there would be an extraordinary internal inconsistency in the position in law of somebody like Mrs Muse. That person would be in a position to say that she was homeless and that Brent owed her a full housing duty, but that she was not homeless at the point in time when she made an application for transfer. An interpretation of s 193 that does not produce this basic inconsistency is clearly preferable.

The result of this conclusion on s 193(5) for Mrs Muse is severe because it means that Brent no longer owes her a full housing duty. It is, therefore, essential to consider whether the judge was correct on his alternative reasoning (unfairness). Mr Carter in opening his appeal submits that Mrs Muse was always aware that she was accommodated on a temporary basis. He further submits Brent followed the statutory safeguards which were required by Parliament and which Parliament clearly considered to be adequate. Mrs Muse was an assured shorthold tenant and therefore had no long-term security. She and those representing her had in any event consistently maintained that 42 Press House was unsuitable for her. Accordingly, Brent would have been acting unlawfully if it had not found accommodation which was suitable.

I have referred above to the obligation on Brent, if the new application was made by Mrs Muse, to give notice of its decision on her application (s 184 of the 1996 Act). That notice had to be in writing and (so far as material) comply with s 184(5):

There was no notice by Brent complying with s184(5). Miss Roberts submits that Brent should at some stage have told Mrs Muse that, once Brent decided that it was not reasonable for her to continue to occupy her accommodation, she could lose her existing accommodation if she refused an offer of alternative suitable accommodation. As she points out, in Griffiths, May LJ considered that housing authorities should give a fuller explanation when it made an offer of accommodation to be provided by private landlord, which might discharge its housing duty ([42]), but May LJ suggested this to avoid misunderstanding not because he thought that the absence of such an explanation made the procedure unfair.

Miss Roberts points out that, in this case, the judge held that Mrs Muse had “slept walked” into a situation where she was to lose her home in three years. Miss Roberts submits that Brent should have explained when they received a transfer request what they were doing and the full implications for the present accommodation. This was anticipated by Mr Rees on 18 July 2006. As it was, on her submission, Mrs Muse had no idea when she made a request to move that she would run the risk of losing the current accommodation. Brent relies on the fact that no representation was made to Mrs Muse that she could remain at 42 Press House. Miss Roberts submits that is not the issue, because a housing authority should be transparent in its dealings with individuals when their home is at stake so that they can make an informed decision about their future. Accordingly, even if Brent is correct on the construction of s 193, it should not be permitted to rely on s 193(5) in the circumstances of this case. All Mrs Muse wanted to do was simply to be transferred to a different band.

In my judgment, although there are references to seeking a transfer to band A, Mrs Muse was seeking more than a mere reassessment of her position in the Locata scheme. She was seeking alternative accommodation. Brent followed the statutory safeguards, and we have not been shown any code of guidance requiring the sort of notice which Miss Roberts submits should have been given. I would therefore not hold that Brent had acted unfairly unless Mrs Muse had been led to believe that she would have some other protection. In fact, Mrs Muse was not led to believe that she would have the choice of remaining at 42 Press House.

The type of notice for which Miss Roberts contends is not one required by section 184. Mrs Muse suffered no prejudice from any non-compliance with s 184. (Moreover, any non-compliance with s 184 could not affect Brent’s obligation to provide her with suitable accommodation, or the validity of the later offer of accommodation in fulfilment of that duty). It is a reasonable inference from the correspondence and from the attempt at rehousing which did not go ahead that Mrs Muse knew that Brent accepted that her existing accommodation was unsuitable for her, and that that was why it was trying to rehouse her. Mrs Muse was also, to the knowledge of Brent, advised by solicitors, and they could reasonably be expected to advise her fully on the legal situation. Accordingly, in my judgment, Brent was not in fairness obliged to offer her the choice of moving to alternative accommodation or staying at her existing accommodation.

There remains the final possibility of waiver. Mr Carter accepts that Mrs Muse could give a fully informed consent to a waiver or withdrawal of any duty owed to her by Brent and that this would be effective in law to discharge the duty otherwise owed by Brent which was waived or withdrawn.

As I said in Aweys (in a judgment with which Smith LJ agreed):

On this basis, Mrs Muse could have withdrawn a request for alternative accommodation and waived the performance by Brent of its duty. At first sight, this seems not to be an attractive solution because Mrs Muse would end up in accommodation that she could not afford. But, there is no reason why the waiver should not be simply of the provision of alternative accommodation by virtue of the changed circumstances as at the date of her request for a transfer. That may be what Mrs Muse hoped to achieve by rejecting the offer. On that basis, she would be entitled to stay in the premises at 42 Press House and would still be a person to whom a housing duty was owed, but would not be entitled to require to be housed by reason only of the change in circumstances since 2002.

The question of waiver, however, only arose on this appeal in answer to a question from the bench. It does not form any part of a respondent’s notice. It formed no part of her case on review and was not argued before the judge. No evidence was directed to the possibility of waiver. It is not suggested in the correspondence. Those advising her may not have thought it in her interests to argue for some form of partial waiver. Furthermore, Mrs Muse is not the only person affected: her children and husband are also entitled to share in the accommodation provided by Brent and so it may be necessary to consider their position as well. In all the circumstances, I am not prepared to hold there was a partial waiver by Mrs Muse of her rights which enables her now to remain at 42 Press House. I appreciate that the result of this appeal for her children and husband is that they may now be homeless rather than in overcrowded accommodation, but that cannot in law justify drawing the inference that there was a waiver which is not otherwise justified.

I wish to make some observations about the passage in the letter of 5 October 2006 which I set out in paragraph 17 above. Mr Carter accepts that this statement was misleading. He accepted that Brent had no legal right to instruct the landlord to obtain a court order for possession. He informs us that all Brent did in practice was to inform the landlord that the housing duty had been discharged and that the housing benefit would therefore be paid a lower rate. The fact however, is that this statement was made. I am surprised to see a public authority make this sort of incorrect statement. Of its nature, it was bound to cause distress since it would have led the tenant to believe that he or she would shortly be homeless and on the street. It was therefore a very serious statement to make. It is properly accepted that it was incorrect. A person in Mrs Muse's position is a private law tenant of a housing association and it would be for the housing association to consider its position. It is not correct for Brent to suggest that it has any right to instruct the association to attain a court order for possession. I hope that housing authorities will take note of these observations, and that these statements will not be repeated in future.

This appeal was listed for half a day. I mean no disrespect to counsel but that estimate was clearly inadequate. An appeal pursuant to section 204 of the 1996 Act frequently requires detailed argument and those conducting the appeal should in future take care to make a sufficient estimate of the court time required for this purpose.

For the reasons given above, I consider that this appeal should be allowed.

I agree with both judgments.

I agree with the conclusion of Arden LJ and for the reasons she gives. I agree with her analysis of the statutory scheme.

The procedure may, as in this case, be prolonged but it was triggered, as Mr Carter submitted, by the appellants’ finding under section 193(1). The duty thereupon is capable of persisting unless and until the local housing authority are no longer subject to it by reason of the provisions in section 193(5) and (6). I do not agree with the judge’s findings, as cited in paragraphs 26 and 27 of the judgment of Arden LJ, that the section does not apply in this case because the respondent had a home when her application for a transfer was made. Section 193(5) came into play when the respondent refused an offer of accommodation which the appellants were satisfied was suitable for her.

I wish to express agreement with Arden LJ’s comments, in paragraph 51 of her judgment, about the letter of 5 October 2006. I also agree that the application to reallocate the respondent into priority Band A, made in a legitimate attempt to improve her housing prospects, did not affect the operation of section 193.

It may create a dilemma for an applicant if the statutory procedure does not permit an applicant, while keeping the section 193 duty alive, to choose to remain in accommodation which she regards as less unsatisfactory than accommodation offered to her which the appellants are satisfied is suitable for her but that, in my view, is the effect of the scheme. The respondent could have appealed to the County Court against the finding that the accommodation offered was suitable but preferred to appeal on other grounds. An application to add that as a ground was refused on 9 October 2007.

The court raised the possibility of the respondent abandoning or withdrawing the particular application for transfer with the object of keeping the section 193 duty alive while remaining where she was. That was no part of the respondent’s case. I would need to hear further argument before deciding whether there are circumstances in which such action might assist an applicant.

The appellants cannot prevent the respondent, by arrangement with her landlords, from remaining in her present accommodation. The practical difficulty is, we are told, that, if the section 193 duty is no longer owed to her, the rate of housing benefit she will receive is lower and she may not be able to afford to stay in the accommodation.