Ravichandran & Anor v London Borough of Lewisham

This is an appeal from an order of Her Honour Judge Faber in the Central London County Court on 13 October 2009, by which she dismissed the appellants’ appeal under section 204 of the Housing Act 1996 (“the 1996 Act”) from a review decision by the respondent authority, the London Borough of Lewisham (“Lewisham”), upholding Lewisham’s decision that it no longer owed a duty to the appellants under section 193 of the 1996 Act (“section 193”).

The appeal concerns the important and difficult provisions of the 1996 Act about the circumstances in which a local housing authority ceases to be under a duty to provide accommodation under section 193, including consideration of the relationship between section 193(5) and section 193(7) and the review obligations of the authority under section 202 of the 1996 Act (“section 202”).

The Judge found herself in the difficult position of having to deal with the case at the very end of a busy day, with only three hours having been allowed for the hearing, even though the parties had asked for a whole day. Acting, doubtless, in what she considered to be in the best interests of the parties and efficiency, she decided to give an immediate judgment. We have added a short postscript at the end of this judgment by way of recommendation as to how such a situation, which may not be uncommon, might preferably be handled.

The appellants, Vimalini Ravichandran and her husband Rasarathinam Ravichandran, were homeless, eligible for assistance, in priority need and persons who Lewisham was satisfied were not homeless intentionally. They thus complied with section 193(1) and were persons to whom Lewisham was obliged to secure that accommodation was available pursuant to section 193(2). Lewisham did provide temporary accommodation at 74 Bell Green, London SE26.

The duty of a local authority continues “until it ceases by virtue of any of the provisions of this section”: see s.193(3). Section 193 has been amended from time to time, particularly by the Homelessness Act 2002 (“the 2002 Act”), and we shall refer to the provisions of the section as amended. The relevant provisions are subsections (5), (6), (7), (7A), (7F), (8) and (9). It is necessary to quote those subsections in full, but it is relevant to note that there are a number of other subsections inserted by way of amendment which apply to situations not present in this case:-

“(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

(6)

The local housing authority shall cease to be subject to the duty under this section if the applicant—

(a)

ceases to be eligible for assistance,

(b)

becomes homeless intentionally from the accommodation made available for his occupation,

(c)

accepts an offer of accommodation under Part VI (allocation of housing), or

(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,

(d)

otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.

(7)

The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation under Part 6.

(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).

. . .

(7F) The local housing authority shall not-

(a)

make a final offer of accommodation under Part 6 for the purposes of subsection (7);

(ab) approve a private accommodation offer; or

(b)

approve an offer of an assured shorthold tenancy for the purposes of subsection (7B), unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer.

(8)

For the purposes of subsection (7F) an applicant may reasonably be expected to accept an offer even though he is under contractual or other obligations in respect of his existing accommodation, provided he is able to bring those obligations to an end before he is required to take up the offer.

(9)

A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.”

Also relevant is section 202 of the Act which provides as follows:-

“202.

Right to request review of decision

(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 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),

(c)

any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),

(d)

any decision under section 198(5) whether the conditions are met for the referral of his case,

(e)

any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred),

(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), or

(g)

any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private accommodation offer (within the meaning of section 193).

(1A) An applicant who is offered accommodation as mentioned section 193(5), (7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer.

(2)

There is no right to request a review of the decision reached on an earlier review.

(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.”

The appellants were made a “final offer” of accommodation under Part VI of the 1996 Act. The accommodation was a three bedroom flat, 3 Wakelin House, Brockley Park, London SE23 (“Wakelin House”). That offer was, as required by section 193(7), in writing and included the following:-

“The Council is satisfied that this accommodation is suitable and it is reasonable for you to accept this offer

If you do not take up this offer the council will no longer have a duty to provide you with any accommodation.

If you do not turn up for the interview, it will be presumed that you are refusing the offer. We will then discharge our duty (to house you) under s.193(7) Housing Act 1996. If you are in temporary accommodation We will terminate your tenancy and you will have to make your own arrangements for housing.

You have a right to review based on the suitability of this offer. This request must be made within 21 days of the offer (s.202 Housing Act 1996).”

The appellants inspected Wakelin House and, with the assistance of one of Lewisham’s case workers, filled in certain forms indicating the unsuitability of the property. Relied on were medical problems: “active thyroid and bronchial asthma” of the husband which meant that since the property was “based on a hill … he will struggle walking to this property”. Also relied on was the fact that “all three children suffer with asthma” and the eldest child “has a leg problem”. A Refusal Form was also filled in; it contained the following statements at its head :-

“The Council is satisfied that this accommodation is suitable and it is reasonable for you to accept this offer. If you do not take up this offer of housing the council will no longer have a duty to provide you with any accommodation. We will then discharge our duty (to house you) under s.193(7) Housing Act 1996. We will terminate any temporary accommodation and you will have to make your own arrangements for housing.

You have a right to a review based on the suitability of this offer. This request must be made within 21 days of this offer …”

The forms were properly treated as a request for a review to which the appellants were entitled under section 202(1)(f). That is a review which the appellants could have requested “whether or not they had accepted the offer” under section 202(1A), but the appellants chose to refuse the offer. Mr Anthony Gomez of Lewisham conducted a detailed review of the medical evidence, medical problems being the only basis suggested for the property being unsuitable or for it being unreasonable for the appellants to accept. On 10^th October 2008 a letter was sent by Mr Gomez to Mr Ravichandran announcing a decision after review that the property offered was considered suitable. It contained the following paragraphs:-

“As you will recall that you asked us to reconsider the decision to offer your family the above property, which you rejected as you felt that it was not suitable for your family’s needs given their various medical conditions.

….

Having carefully considered the reasons advanced by yourself for refusing the property, and bearing in mind the medical adviser’s opinion, I am satisfied that the property is suitable for your family’s needs.

. . .

I have also carefully considered the fact that the property is located on a hill, a fact confirmed by our visiting officer. However, having considered your family’s medical history I do not consider that the location of the property makes it unsuitable for your family, a view that is also held by your medical adviser.

I have also considered the physical aspects of the property and note that it is a three bedroom, ground floor flat, with gas central hearing. Your household is comprised of yourself, your husband and three children and I am satisfied therefore that the property is suitable for a family of your size.

In the circumstances I am satisfied that the property that the offer that was made to you was a reasonable offer. I am also satisfied that the property was suitable for your family’s needs I therefore uphold the Council’s decision to offer it to you.

As a result of my decision my Council will shortly be formally writing to you to discharge its duty to you. My Council will also be commencing action to recover your present temporary accommodation and you should therefore begin looking for alternative accommodation.

I must advise you that you have no further right of review of my decision although you may appeal to the County Court, on a point of law, within 21 days of the date of this letter although the court may, at its discretion, allow a longer period.”

The above letter was then followed by another dated 8^th January 2009 from Mr Sean Dixon , one of Lewisham’s housing officers, in these terms:-

“Housing Act 1996 Part VII (homelessness) – Permanent Discharge Of Duty under S193(7)

The Council accepted a duty to secure permanent, reasonable and suitable accommodation for you on 19th April, 2005

You were made an offer of such accommodation at [Wakelin House] by way of letter dated 13th August, 2008. It was made clear to you in this offer letter that this was your (one) final offer and that the Council would discharge its duty to house you if you failed to take up this offer.

You viewed the property 19th August 2008 but did not accept the offer and requested a review of the Council’s decision to offer you the property … You were advised by 202 review of offer letter dated 10^th October, 2008 that the Council’s decision had been upheld as the property was suitable for you.

As a result the Council is permanently discharging any duty it owes toward you under s193(7) Housing Act 1996.

The Information the Council considered in reaching this decision

•

The information on our housing file

•

The Code of Guidance issued by the Government

•

The current housing situation in the London Borough of Lewisham

•

Lewisham Council’s Housing Strategy

•

Offer letter dated 13^th August 2008

•

202 review letter dated 10^th October 2008

The Council’s Duty

The Council is therefore ending its duty to assist you with housing under Section 193(7) of the above Act. The Council’s decision means that we no longer have a duty to secure accommodation for you.

Requesting a Review of the Council’s Decision

Under Section 202 of the Housing Act 1996, you can request a review of this decision within 21 days.”

The above letter led to a response from solicitors acting for the appellants dated 14^th January 2009. It referred to the provision of temporary accommodation and to the offer of permanent accommodation at Wakelin House. It referred to the medical problems already previously identified. It also referred to the anti-social behaviour suffered while in the temporary accommodation and about the lack of action so far. It then continued in this way:-

“Our client further instructs us that when she visited to see the property (offered to them soon after they received the offer letter) with her husband and children, some people from upstairs spilt (sic) at them and used abusive language. Our client believes that this was racially motivated. Furthermore, our client confirms that she does not want to move to a place where her children would not feel secured. She has elaborated her bitter past experience in her current accommodation. She also states that there were no steps taken to get rid of the anti social behaviour.

We refer to our telephone conversation of 13^th January 2009 with Mr Dixon and with Mr Georgeou of 14^th January 2009.

We understand that the council is permanently discharging its duty it owes towards our clients under section 193(7) of Housing Act 1996.

Please consider the following:-

Our client, husband and three children are asthmatic

The property is situation in a hill

Our client and the family were verbally abused by the neighbours when they went to view the location.

Our client is scared to move to this property with her children because she has every way to believe that the incident is racially motivated

Our client has every reason to refuse to move the property

Our client has limited knowledge of English language. Hence she was unable to express herself previously.

Please consider the above facts and review your decision on discharging your duty.”

By letter of 17^th February 2009 Mr Lee Georgiou, who was a Housing Reviews Officer, said that he had reached a decision on the review stating that he was satisfied that the provisions under section 193(7A) were met. He set out his reasons, essentially relying on the making of the offer of Wakelin House; the fact that the letter containing the offer was in writing and that it warned of the possible consequences of refusing the offer, stating that “We will discharge our duty to house you under section 193(7)”; that the offer letter also referred to the right of review of that decision on the ground of suitability; and there had been a review, and the decision that the house was suitable. No mention was made of the allegations of racial harassment, made for the first time in the solicitors’ letter of 14^th January 2009. He informed Mrs Ravichandran that he was upholding the decision made on 8th January and stated that “this authority ceases to be subject to the section 193 duty because you have refused an offer of suitable accommodation”. He said finally that, if Mrs Ravichandran was dissatisfied, she could appeal on a point of law to the County Court, the appeal to be lodged within 21 days.

On 4^th March 2009 different solicitors now acting for the appellants complained that the section 202 review decision was defective because it had not addressed the allegations of racial abuse experienced when the appellants visited Wakelin House. They asked for the decision to be withdrawn and said that, if it was not withdrawn, there would be an appeal to the County Court.

By e-mail dated 4^th March Mr Georgiou confirmed withdrawal of the decision of 17^th February saying:-

“As it stands, with the information presently available, I am still satisfied that accommodation offered was suitable and reasonable for your client to accept. However I appreciate that you have not been able to provide full submissions for your client and I feel that it is only reasonable to give you an opportunity to do so. I propose that you provide any further representations to support your client by the 11^th March 2009 to enable me to reach a decision by the 18^th March 2009.”

After various extensions of time and disclosure of documents by the local authority, lengthy representations were made by the solicitors acting for the appellants by letter dated 15 April 2009. At the forefront of the letter was a description of how it was alleged Mr and Mrs Ravichandran had been racially abused on their visit to Wakelin House, and how this was on top of abuse they had suffered at their temporary accommodation. As they put it “Having suffered from racial abuse at his temporary accommodation our client was extremely anxious at the prospect of experiencing further racial abuse at accommodation which was set to be permanent.” The letter also said that their client had mentioned the abuse at the viewing which had taken place on 19^th August 2008 when accompanied by Jackie Harding from the local authority. The letter summarised the position under a conclusion as follows:-

“Conclusion

The accommodation offered to our client was not suitable for medical reasons as explained above.

Before a local authority makes an offer of accommodation it should be satisfied not only that the accommodation offered is suitable but also that it would be reasonable for the applicant to accept the offer. In the Court of Appeal case of Slater v Lewisham LBC [2006] EWCA Civ 394, Legal Action, June, p.36 the Court of Appeal held that “the decision maker must have regard to all the personal characteristics of the applicant . . . and then taking account of those individual factors the subjective factors, ask whether it is reasonable . . . that this applicant should have accepted the offer of this accommodation.”

Given our client’s history of experiencing racial abuse at his current accommodation, and the instance of racial abuse at the offered property, it would be unreasonable to expect our client to accept the property at 3 Wakelin House.

For the above reasons we believe than an offer of suitable accommodation was not made to our client and therefore your duty under s.193(7) has not been discharged.”

Lewisham’s response came by e-mail from Mr Georgiou dated 8^th May saying:-

“You will see that I have not address (sic) several of your representations in full because in my view it is not necessary. This review is on the discharge of duty address whether the offer, including the procedure leading up it was such to cause the duty to cease.

The majority of your representations focus on suitability which is not the issue that we are dealing with in this review. The authority had already conducted a review on suitability it was completed by Mr Gomez and the decision was that the Council were satisfied it was a reasonable and suitable offer for your client.”

The attached section 202 decision referred to being satisfied that the provisions of sections 193(5) as well as 193(7) were met. It traces through the history of offer and review stating that “a ‘s.202 Review’ of Suitability...dealt with all the issues at that point.” It then records the recent submissions including the allegation of racial abuse and the assertion that it was unreasonable to expect the appellants to accept Wakelin House given the history of racial abuse at the current address. Thereafter no reference is made to the racial abuse suffered on the visit. The letter relies on the previous review and concludes:-

“Your clients was offer (sic) accommodation at 3 Wakelin House, Brockley Park, London SE23 1PU. The authority had informed your client of the possible consequence of refusing an offer in the offer letter of the 18 August 2008 and at the viewing of the property on the 19 August 2008. Your clients were aware of their rights to appeal against the suitability of that offer which they exercised. On completing the suitability review the authority was satisfied that the offer was both suitable and reasonable for your client to accept.

As all of the provision of section 193(5) and (7) have been met the authority no longer owes your client a duty under s.193 of the Housing Act. Your clients are now required to vacate the accommodation they currently occupying at 74 Bell Green, London SE26 4PZ.”

Judge Faber dismissed the appellants’ appeal from Lewisham’s May 2009 review decision pursuant to section 204 of the 1996 Act on the following grounds. She held that Mr Georgiou was not obliged in May 2009 to consider the issue of suitability again, that decision having already been taken and reviewed in October 2008, and there having been no appeal under section 204 from that review. She then held that, although the issue of whether or not it was reasonable to accept Lewisham’s offer did fall to be considered in the May 2009 review pursuant to section 202(1)(b) as one of the requirements for an offer within section 193(7), Lewisham was entitled by virtue of the decision of the Court of Appeal in Omar v Birmingham City Council [2007] EWCA Civ 610, [2007] JLR 43 to rely instead on section 193(5), which did not involve that requirement for an offer within that subsection.

The appellants appeal on the grounds that (1) the May 2009 review was flawed because (a) Lewisham was not entitled to rely on section 193(5), Lewisham’s only offer having been made pursuant to section 193(7) and the review being a review of a decision in relation to section 193(7); (b) the review had failed to take into account, in relation to both the suitability and “reasonable to accept” issues under section 193(7), that the appellants had been subjected to racial abuse when they had first viewed Wakefield House; and (c) Mr Georgiou had wrongly concluded that he was not required to have regard to that incident of racial abuse in relation to suitability; and (2) the Judge misapplied the decision in Omar v Birmingham CC.

Lewisham has filed a Respondent’s Notice to uphold the Judge’s order on the additional grounds that (1) the review decision of 10 October 2008, on a proper reading, included a decision that it would have been reasonable for the appellants to have accepted the offer of 13th August 2008; alternatively, (2) if the reasonableness of accepting the offer had been separately addressed in the decision of 10^th October 2008, it could have made no difference to the outcome of the review.

The starting point is that the requirements for the cessation of an authority’s duty under section 193(5), on the one hand, and under section 193(7), on the other hand, are different in important respects. This is not surprising. Section 193(5) is concerned with offers of temporary accommodation to meet the authority’s duty under Part VII of the 1996 Act. Section 193(7) is concerned with offers of permanent accommodation pursuant to the local housing authority’s allocation scheme under Part VI of the 1996 Act. It is obvious that the suitability of accommodation may be quite different depending on whether it is intended to be temporary or permanent. Section 167(8) provides that an offer of permanent accommodation must be made strictly in accordance with the authority’s allocation scheme. That scheme may provide, as in Lewisham’s case it did, for the applicant to exercise a choice between different properties and impose an entitlement as to location, type and size of property.

The distinction between the rights and expectations of applicants with regard to temporary accommodation, on the one hand, and permanent accommodation, on the other hand, is reflected in Griffiths v St Helens MBC [2006] EWCA Civ 160, [2006] 1 WLR 2233. In that case it was held that an applicant is free to refuse an assured shorthold tenancy from a private landlord which is offered as a permanent solution to his homelessness, but not an offer of an assured shorthold tenancy from a private landlord which is not put forward as a permanent solution.

Further, and critically in the context of the present appeal, under section 193(5) the authority must be satisfied that the accommodation is suitable for the applicant, but it is not required to be satisfied that, in addition, it would be reasonable for the applicant to accept the offer. In the case of an offer under section 193(7), however, the authority must be satisfied that, in addition to the accommodation being suitable for the applicant, it would also be reasonable for the applicant to accept the offer: s.193(7F). Although there is a significant area of overlap between the suitability of accommodation and the question whether it would be reasonable for the applicant to accept the accommodation, these are distinct and different requirements: Ahmed v Leicester City Council [2007] EWCA Civ 843, [2008] HLR 6, especially at para. [29] (Arden LJ); and Slater v Lewisham LBC [2006] EWCA Civ 394, [2006] HLR 37 . In Slater Ward LJ, with whose judgment the other members of the Court agreed, said the following:

“[28] …. In the first place, the language is to my mind plain and should be given its ordinary meaning. This requires the local housing authority to be “satisfied that… [limb 1. the suitability of the accommodation] and that … [limb 2 the reasonableness of acceptance].” The use of the word “that” makes it clear that there are two elements of which the decision-maker must be satisfied.”

“[29] As Lord Hoffmann observed R v Brent LBC. Ex p. Awua (1995) 27 HLR 453. 464, suitability is primarily a matter of space and arrangement though no doubt other matters may also be material….”

“[30] It is true, therefore, that the particular needs of the applicant, for example, to be protected from domestic violence and to be located near to support networks are relevant when considering suitability. That does not, however, mean, in my judgment, that these personal preferences are material only as aspects of suitability. If the appellant is correct in its submission that if the premises are judged objectively to be suitable therefore it must follow that it is [un]reasonable to refuse the offer, then there is no need to provide for the second limb and the additional words in s.193(7F) “and that it is reasonable for him to accept the offer” would be otiose. The language simply does not permit that construction.”

“[34] … This is a scant justification for disregarding the applicant’s views when the authority has to consider, as in my judgment it must, whether or not it was reasonable for the applicant to accept the offer of what under the first limb of s. 193(7F) had been found to have been suitable accommodation. In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.”

Accordingly, the reasonableness requirement in section 193(7F) is not satisfied by the authority making an offer which it considers reasonable; what is required is an offer which it would be reasonable for the applicant to accept. The distinction between those two different qualifications was highlighted by Neuberger LJ in Tower Hamlets LBC v Rahanara Begum [2005] EWCA Civ 116, [2006] HLR 9, especially at paragraphs [26], [27] and [31] of his judgment, with which the other members of the Court agreed. He said:

“[26]. I turn to the text of the letter of 25 January 2002. It referred to the Council “making a reasonable and suitable offer of permanent accommodation”, but it made no reference to the opinion that it was or would be reasonable for the respondent to accept the accommodation…

[27] On a fair reading, the letter of 25 January 2002 was a proleptic communication as to the Council’s conclusion if 3 Brimsdown House was rejected again .... Further, the section requires the communication to state both that “the accommodation was suitable” for the person concerned, and that “it was reasonable for him to accept it”. While I do not suggest that the wording of the communication must slavishly follow those forms of words, it must, in my view, convey both points. I do not think that the 25 January letter quite achieves that: it merely refers to 3 Brimsdown House as amounting to a “reasonable and suitable offer of permanent accommodation”.

…

“[31] There is an alternative analysis, which was that adopted by the Council, and it is an analysis which is arguably correct, although (for reasons already given) I do not think that it is. That analysis is that the letter of 25 January 2002 was an appropriate notification under section 193(7)(b) …”

In the present case, the offer to the appellants was an offer of permanent accommodation within section 193(7). That is perfectly clear from the terms of the offer and the refusal form, both of which expressly refer to section 193(7). Unless bound by authority to reach a different conclusion, we would not accept Lewisham’s argument that an offer of permanent accommodation under section 193(7) can, if refused, nevertheless lead to a discharge of the authority’s duty under section 193 by virtue of the provisions of section 193(5) and did so in the present case irrespective of whether the reasonableness requirement under section 193(7F) was satisfied. The Judge accepted Lewisham’s argument because, with inadequate time to study the authorities with the care she would have liked, she considered that Omar v Birmingham CC was binding authority to that effect. We do not consider that Omar is binding authority for Lewisham’s proposition.

The facts of Omar were that the local authority, pursuant to its obligation under section 193(2), made a written offer of accommodation to Mr Omar, stating that it was Mr Omar’s one and final offer; that the council was satisfied that the accommodation was suitable for the needs of Mr Omar and his family and that it would be reasonable for him to accept it; and that, if he decided to refuse the offer without good reason to do so, the council would consider that it had discharged its duty to him under Part VII of the 1996 Act; and that accordingly no further offers of accommodation would be made. Mr Omar refused the offer. Following Mr Omar’s request for a review of the local authority’s decisions that the accommodation was suitable and that it had discharged its duty to him, the local authority upheld those decisions. Mr Omar appealed to the county court on the ground, among others, that the local authority had not expressly informed him that the offer was made for the purposes of section 193(7), as required by section 193(7A) in respect of a final offer under Part VI. The Court of Appeal, giving ex tempore judgments, dismissed Mr Omar’s appeal. May LJ said that, although section 193(7A) was expressed in mandatory terms, a literal slavish repetition of the exact words of the subsection was not required. The explicit reference to a final offer in the local authority’s letter could only mean that it was an offer within Part VI and for that reason it might be possible to say that sub-section (7) was indeed complied with. In any event, the local authority’s letter conveyed everything which mattered to the homeless applicant, namely that the local authority considered the offered accommodation to be suitable and that it was reasonable for him to accept the offer and the possible consequences of a refusal. May LJ then said that, even if that were wrong, he was quite clear that Mr Omar’s refusal of the local authority’s offer was or would have been a refusal within section 193(5). He rejected the submission of Mr Omar’s counsel that section 193(5) is limited to temporary accommodation. Lloyd LJ said that he based his dismissal of the appeal on the section 193(5) ground. Sir Andrew Morritt C agreed that the appeal should be dismissed “for all the reasons given by Lord Justice May”.

There was debate before us as to whether the second ground relied upon by May LJ was obiter, and so not binding authority, or an alternative ground of decision, and so binding precedent. In our judgment, it is sufficient to limit Omar to its own particular facts. In that case, the offer did not expressly specify whether it was made under section 193(7) or (5). Mr Omar’s complaint was that it failed as an offer under section 193(7) precisely because it did not so specify. We do not consider that the alternative ground for dismissal of the appeal in that case can apply in the present case where the offer makes perfectly clear that it is an offer of permanent accommodation under section 193(7) and not section 193(5). Further, there was no issue in Omar as to whether or not the reasonableness requirement of section 193(7F) was satisfied. We do not consider Omar is a precedent for the proposition that, where an authority makes an offer of permanent accommodation expressly under section 193(7), but fails to satisfy the reasonableness requirement, it can treat itself as discharged from all duty under section 193 by unilaterally treating the offer and the refusal as made under section 193(5). Bearing in mind the wholly different nature and considerations affecting the provision of permanent accommodation pursuant to a local authoirty’s allocation scheme, on the one hand, and the provision of temporary accommodation, on the other hand, that would be absurd and cannot possibly have been the intention of Parliament. For that reason, as a matter of fairness and the proper discharge of its functions, a local authority making an offer of accommodation, the refusal of which it intends to rely upon in discharge of its duty under section 193(2), should always make clear to the applicant whether the offer is intended to be within section 193(5) or within section 193(7).

Mr Arden submitted that, in consequence of the amendments to the 1996 Act by the 2002 Act, the only “decision” of an authority as to the discharge of its duty under section 193(7) in relation to which a review is possible under section 202, is the decision prior to the making of the offer that the offer will satisfy the requirements of section 193(7F) and the refusal of it will result in a discharge under section 193(7). Section 193(7), as originally enacted, provided:

“(7)

The local housing authority shall also cease to be subject to the duty under this section if-

(a)

the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI, and

(b)

the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal.”

Mr Arden, relying on the amendments to section 193(7), and particularly the omission of the notification provision, submitted that section 193(7) now provides for automatic cessation of the authority’s duty if the circumstances specified there have occurred. The discharge is, he said, no longer dependant on any decision to be taken by the authority following the refusal of an offer. He dismissed as misconceived and irrelevant the indications of Lewisham’s officers, in particular by Mr Gomez in his letter of 10th October 2008 and by Mr Dixon in his letter of 8th January 2009, that Lewisham only decided to regard its duty under section 193(2) as discharged some time after the appellant’s refusal of the offer. By way of riposte, Mr Latham, both in his skeleton arguments and in his oral submissions, advanced several reasons as to why, notwithstanding the omission of the notification requirement in the amended section 193(7), it is implicit in the amended statutory provisions that, following refusal of an offer, the authority must notify the applicant that the authority regards itself as discharged from its duty under the sub-section.

In our judgment, both Mr Arden’s submission, as well as Mr Latham’s perceived need to address it by arguing for an implied notification provision, are misconceived in view of the analysis and decision of the Court of Appeal in Warsame v Hounslow LBC [2000] 1 WLR 696. In that case the appellants refused the local authority’s offer of accommodation under Part VI of the 1996 Act on the ground that it was not suitable, and then, after the authority had informed them that if they did not accept the offer, the authority’s duty to house them would cease, requested a review under section 202(1)(b) of the authority’s decision that its duty to house the appellants had ceased. The review panel upheld the authority’s decision. Chadwick LJ, with whose judgment the other member of the Court agreed, said that it was clear that the result of the review was that the local authority was confirming a decision that there was no longer any duty owed to the appellants under section 193, or otherwise under Part VII of the Act. The appellants’ appeal to the County Court was dismissed on the ground that there was no jurisdiction to entertain it because there was no provision in section 202 (in its then unamended terms) to request a review of the suitability of the accommodation offered under Part VI. In allowing the appeal, Chadwick LJ said that the County Court judge had failed to give due weight to the width of section 202(1)(b). He said that section 202(1)(b) is plainly directed to the question whether a duty arises, and then continued at page 705A as follows:

“But, although the paragraph plainly applies in that case, the language is apt, also, to apply to a decision that a duty, once owed, is owed no longer. A decision that a duty once owed is no longer owed is, to my mind, plainly a decision as to what duty, if any, is owed at the time when the decision is taken. I can see nothing in the language which restricts decisions within paragraph (b) to decisions whether a duty arises excludes decisions whether a duty which has arisen has ceased. Accordingly, it seems to me that the second question arises: namely, whether a decision as to whether certain events have occurred or certain conditions are satisfied is also within the phrase “any decision of a local housing authority as to what … duty is owed.” … If the phrase “any decision” within section 202(1)(b) includes decisions as to factual situations which must exist for any duty or any particular duty to have arisen, I can see no reason why that phrase would not also apply to decisions as to the existence of events or factual situations which, if they have occurred, or do exist, will have the effect that the duty ceases to exist. The words are plainly wide enough to cover that case.”

Although that was a decision under the unamended provisions of section 193(7), the decision remains applicable to the amended provisions. Although worded differently, the original provisions of section 193(7) provided for automatic cessation, albeit at a later date (ie after notification). In the present case, it is clear from the correspondence, including in particular the letters from Mr Gomez and Mr Dixon to which we have referred in paragraph [29] above, that Lewisham came to a decision in January 2009 about whether or not its duty had ceased under section 193(7). The effect of Warsame is that its decision taken then, even if only confirmatory of a prior automatic discharge, was reviewable under section 202(1)(b).

It was submitted by Mr Arden that this produced an absurd result since it would mean that it would never be possible for suitability, reasonableness and discharge to be reviewed at the same time. We do not accept that criticism. If, following the making of the offer by Lewisham or at any event once there had been a refusal of the offer, there had been a review at the same time of both the suitability and “reasonable to accept” requirements as well as the decision prospectively to discharge by the making of the offer (or, if after refusal, that the conditions for discharge had been satisfied), they could have been dealt with at the same time, and by virtue of section 202(2) would not then be open for further review. The problem in the present case is that until January 2009 there never was an invitation for a review of the “reasonable to accept” aspect or of the prospective discharge of duty by the making of the offer or of the satisfaction of the conditions for discharge under section 193(7) and no such review was in fact carried out until then. The only review was of suitability under section 202(1)(f) (as amended) and not, as indicated in Warsame, under section 202(1)(b) both as to the discharge of Lewisham’s duty and the “reasonable to accept” issue.

That is clear from the facts. Lewisham’s offer, which was an offer under section 193(7), was refused by the appellants on 21st August 2008. The offer letter informed them that they had “a right to a review based on the suitability of [the] offer”. They exercised that right. They were informed of the result by Mr Gomez’ letter of 10th October 2008, namely that he was satisfied that the property was “suitable for [the appellants’] family’s needs”. Mr Gomez also stated that he was satisfied that the offer “was a reasonable offer”, but, for the reasons we have given, that is not the same as the “reasonable to accept” requirement under section 193(7F). It appears to be common ground that if, as we find, there was no review by Lewisham of the “reasonable to accept” requirement prior to January 2009, the racial incident at Wakefield House had to be taken into account on the review conducted between January and May 2009 since the incident occurred prior to the date of the refusal of the offer, even though it was only later relied upon by the appellants: Omar v Westminster City Council [2008] EWCA Civ 421, [2008] HLR 36, para [32]. Lewisham did not, however, take it into account on the review.

Even if that is wrong, and there was a review of the “reasonable to accept” requirement at the same time as the review of the suitability requirement in October 2008, it is clear from the terms of the offer, Mr Gomez’ letter of 10 October 2008 and subsequent correspondence, that Lewisham did not regard itself as having come to a conclusion about whether or not its duty under section 193 was discharged until January 2009. By the conclusion in May 2009 of the review of Lewisham’s discharge decision (that is to say, its decision that it had been discharged from its duty by virtue of the provisions of section 193) the incident of racial harassment at Wakefield House had been communicated to Lewisham. It therefore had to be taken into account on that review since the incident had taken place prior to the date of the refusal of the offer and was relevant to both the suitability and the “reasonable to accept” requirements and hence to the discharge of Lewisham’s duty, and it had not been considered on the previous review. Lewisham did not, however, take it into account.

For clarity and practical assistance, we summarise as follows the principles which we have sought to clarify in this judgment.

For reasons given above, we would allow this appeal.

The Judge said this at the beginning of her judgment:

“I note at the outset that the parties asked the court to give them a day for argument and ruling, but that only three hours have been allowed. That was a wholly inadequate amount of time to read the authorities, particularly since the restriction to three hours was not accompanied by an order to lodge the authorities on the previous night so there was no time to read the law in advance. As it is quarter to five I also have no time to set out the contents of the skeleton arguments, the facts or the full decisions of the case law cited to me and nor have I had time to read all of that case law in detail. So I do my best now and I will leave it to the Court of Appeal to correct this if it is wrong”.

We do not know whether there have been problems with listing at the Central London County Court, so that the Judge felt she had to make a point, nor do we know whether there were good reasons why the Judge could not reserve at least the giving of her considered analysis and reasons. If there has not been time to read the relevant authorities properly then, absent some special reason, the proper approach must normally be to reserve. Not to do so penalises the litigants. The problems of not providing enough time are real, and we sympathise with the Judge’s difficulty, but any listing problem must be taken up with the listing office or those with responsibility for the listing office independently.