Akhtar v Birmingham City Council

This appeal concerns the homelessness provisions in Part 7 of the Housing Act 1996 (“the Act”). It is an appeal from the order dated 7 June 2010 of HH Judge Worster in the Birmingham County Court dismissing the appeal of the Appellant, Naseem Akhtar, from a review decision of the Respondent, Birmingham City Council, pursuant to sections 202 and 203 of the Act, that the Respondent had discharged its duty to secure accommodation for the Appellant under section 193(2) of the Act. The reason given in the review decision letter was that the Respondent had discharged its duty by its offer to the Appellant of 45 Hartley Road, Kingstanding, Birmingham (“Hartley Road”). That offer was refused by the Appellant on the ground that Hartley Road was unsuitable.

The issues on the appeal are (1) whether the Respondent, when it notified the Appellant by letter dated 5 May 2009 that it had decided a review in favour of the Appellant in relation to an offer of 41 Twickenham Road, Kingstanding, Birmingham (“Twickenham Road”), should have stated the reason for that decision, and in particular that its decision had been made solely on the ground of the size of Twickenham Road, and not on the other grounds of objection by the Appellant, including location; and (2) whether the Respondent, when it subsequently made its offer to the Appellant of Hartley Road by letter dated 12 August 2009, should have stated why it considered that Hartley Road was suitable for the Appellant and her family and it would be reasonable for her to accept it, and in particular explaining why, by contrast, it had previously agreed with the Appellant on review that Twickenham Road had been unsuitable. The Appellant’s case is that, when she refused the offer of Hartley Road, she was under the mistaken impression that the Respondent had previously accepted Twickenham Road to be unsuitable because of, among other things, its location in Kingstanding, and that her objection to Hartley Road on the grounds of its location also in Kingstanding would be bound to be accepted as a valid objection.

Expressed in terms of principle, the issues on the appeal are whether, notwithstanding the absence of any express statutory requirement to do so, a local housing authority must, when it makes an offer of accommodation pursuant to its duty under section 193(2) of the Act, state its reasons for considering the property to be suitable and that it is reasonable for the applicant to accept it; and must, when it decides a review under sections 202 and 203 of the Act in favour of the applicant, state its reasons for its decision.

As a result of directions given by Mummery LJ on 29 November 2010, both the Appellant’s application for permission to appeal and, if granted, the appeal have been listed before us, and we have heard them together.

The statutory framework, so far as relevant to the determination of this appeal, may be summarised as follows. Section 193(2) of the Act imposes on a local housing authority a duty to secure that accommodation is available for occupation by an applicant who is homeless, eligible for assistance and has a priority need, and has not become homeless intentionally. By section 193(7) the authority ceases to be subject to that duty if the applicant, having been informed of the possible consequences of refusal and of his or her right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6 (allocation of housing accommodation). Section 193(7F) provides that the authority must not make such a final offer unless it is satisfied that the accommodation is suitable for the applicant and that it is reasonable for him or her to accept the offer.

Section 202 of the Act confers on the applicant a right to request a review by the housing authority of its decision that the offered accommodation is suitable and that it is reasonable for the applicant to accept it, and of any decision by the authority that it has discharged its duty under section 193(2) by, for example, an offer and its refusal within section 193(7). Section 202(1A) of the Act provides that an applicant, who is offered accommodation as mentioned in section 193(7), may request a review in respect of the suitability of that accommodation whether or not he or she has accepted the offer.

Section 203 of the Act makes provision for the procedure on such a review. The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which have been made pursuant to section 203, provide for the applicant to make representations in connection with the review. Section 203(3) provides that the authority shall notify the applicant of the decision on the review. If the decision on the review is to confirm the original decision on any issue against the interests of the applicant, section 203(4) requires the authority to notify the applicant of the reasons. By virtue of section 204 of the Act the applicant has a right to appeal to the County Court on a point of law if he or she is dissatisfied with the decision on the review.

The relevant statutory provisions are set out in the appendix to this judgment.

The Appellant lives with her seven children aged between 12 and 21. She applied to the Respondent as a homeless person on 21 March 2005. On 12 December 2006 the Respondent accepted a full housing duty to the Appellant pursuant to section 193 of the Act.

On 24 February 2009 the Respondent offered Twickenham Road to the Appellant. It had 3 bedrooms and 2 living rooms. The Appellant rejected the offer. The Respondent notified the Appellant that, in the light of her refusal, it regarded itself as having discharged its duty to her under Part 7 of the Act as she had refused an offer of accommodation that was suitable and reasonable for her to have accepted.

The Appellant requested a review of the decision. Representations were made by her solicitors in a letter dated 23 March 2009. They raised three issues. The first was that Twickenham Road was too small. The second was that it was too far from the facilities her family needed. It was said, in particular, that the Appellant had been living for some time in temporary accommodation in Moseley, and her children were settled in local schools; one of her daughters was in a GCSE year; and one of her sons had special needs; her children also attended the local Islamic school at the mosque in Balsall Heath. The third was that she would feel isolated and unsafe in the area: she saw no Pakistani people there.

By letter dated 5 May 2009 the review officer notified the Appellant that he had decided to overturn the Respondent’s decision that it had discharged its duty to her. He wrote:

“I have considered all the evidence including but not limited to:

Your homeless application form

Your review request dated 23 March 2009

Taking into account all the evidence available to me, I have concluded:

I have decided to overturn the decision to discharge duty to you, and to reinstate your homeless priority status. Subsequently, you will be made one final offer of accommodation in line with Current Allocations Policy.

Birmingham City Council housing Policy is that all homeless applicants accepted under Part VII of the Housing Act 1996 will receive one offer of suitable accommodation. This will be your one and final offer, which fulfils the City Council’s duty under the grounds of homelessness.”

The standard-form letter spelled out the choice she would have when she received the (next) offer:

“When you are made your final offers of accommodation you have two choices. You can either:

(1)

Accept the property or

(2)

Refuse the property.

Irrespective of your decision, you can ask us to review the suitability of the offer. You should however be aware that if you refuse the property and your review is unsuccessful, you will not be made any further offers of accommodation from Birmingham City Council because of your homeless status. If you refuse the offer we are limited to providing you with advice and assistance.

You will be offered accommodation suitable for your household as defined in the City Council’s Allocations Policy. If you choose to refuse a further offer, based only on the basis that it is not in your main area of choice, or it is not the property type of your preference, it is unlikely that you will be made a further offer. As you were advised in your homeless interview, if the City Council is unable to secure a suitable property for you within 8 weeks of accepting the main housing duty towards you, your areas of choice may be extended to city-wide.

We therefore advise all applicants to carefully consider accepting the offer made to them to alleviate homelessness. There is no guarantee that you will be made another offer. I also strongly advise you to utilise the opportunity to have an accompanied viewing, whereby a Housing Officer will be able to discuss any queries you may have.”

The Respondent gave no reasons for the review decision in favour of the Appellant. On the same date as his decision letter, however, the review officer wrote the following file note:

“Offered 3 bed parlour type. Household mum + 7 children. NB Eldest daughter is now 21, requires room of her own under new Allocations Policy. As such, family need a property with 5/6 bedrooms under this policy. Property offered is not large enough to discharge duty to this household in accordance with Allocations Policy…”

On 12 August 2009 the Respondent offered Hartley Road to the Appellant. It has 4 bedrooms and 2 living rooms. Like Twickenham Road it is in the Kingstanding area. The offer letter included the following passages:

“As part of this legal duty [under Part 7 of the Act] we only have to offer you accommodation once. This is your one and final offer.

We think that the accommodation we are offering you is suitable for you and your family and that it would be reasonable for you to accept it.

……..

What happens if you turn this offer down?

If you turn this offer down without good reason we will not offer you any more accommodation and the Council will have discharged its duty to you.

…

You can ask for a review if you do not agree that the accommodation is unsuitable. You have this right whether you decide to accept or refuse this offer of accommodation.”

The Appellant viewed Hartley Road and decided to refuse it. On 17 August 2009 the Respondent wrote to the Appellant stating that it was satisfied that Hartley Road was suitable for the needs of the Appellant and her family and it would be reasonable for her to accept it; and in view of the Appellant’s refusal of the property, the Respondent considered that it had discharged its duty to her under Part 7 of the Act and no further offers of accommodation would be made. The letter informed the Appellant of her right to request a review of the decision under section 202 of the Act.

By a letter dated 25 August 2009 the Appellant’s solicitors requested a review. They gave the following reasons for the Appellant’s rejection of the offer: the property was too small for the Appellant’s family; the property was too far from the Appellant’s “established areas of choice” since the Appellant and her family were currently living in the Moseley area of the city and her children were well settled in their local Islamic schools; the Appellant did not feel safe in the area, as she did not see any Pakistani people there, and she felt that her family would be isolated and unsafe in the area. The letter concluded:

“You will have on record that the Housing Department have previously offered our client property in the Kingstanding area of the city and deemed it unsuitable; in the circumstances we fail to see how the current offer could have lead [sic] you to discharge your duties in this matter.”

By letter dated 21 October 2009 the Respondent’s review officer notified the Appellant that he was minded to uphold the original decision. The letter dealt with the previous offer of Twickenham Road and the Appellant’s representation that the Respondent had agreed that the property had been unsuitable because of its location. The review officer said in the letter that Twickenham Road was “not deemed unsuitable due to its location”, and apologised if that had not been explained in the review decision letter. It said that Twickenham Road had been considered unsuitable by reason of its size only.

The Appellant’s solicitors sent written representations to the review officer by letter dated 6 November 2009. They said, among other things, that the Appellant did not accept that the offer of Twickenham Road was withdrawn solely due to its size, and that she maintained that a deciding factor was its location. The letter went on to make further representations about the difficulties involved in the Appellant’s children travelling to their existing schools and attending their Islamic studies if they were living in Kingstanding. There was also reference to the Respondent’s lack of enquiry about the effect of moving the Appellant’s son from his current school. Further issues were raised about the size of the property.

On 11 December 2009 the review officer sent a letter notifying the Appellant that he was still minded to uphold the original decision that Hartley Road was suitable accommodation. The letter repeated that the reason Twickenham Road had been considered unsuitable related only to size and not its location.

In his decision letter dated 21 December 2009 the review officer notified the Appellant that he had decided to uphold the original decision that Hartley Road was suitable and reasonable for her to accept.

The Appellant appealed to the County Court under section 204 of the Act. The appeal was on several grounds, including the following: (1) when making the offer of Hartley Road, the Respondent failed to assess the Appellant’s needs; (2) the Respondent failed to provide reasons as to suitability and reasonableness in the offer letter of 12 August 2009 and the letter of 17 August 2009; and (3) the procedure was unfair because the Appellant did not know the Respondent’s reasoning at the time she refused the offer of Hartley Road and was under the impression the Respondent would accept the same objections as had been made in relation to the Kingstanding area on the previous offer of Twickenham Road. The practical nub of the Appellant’s complaint was that she considered the Respondent had led her to think that she had good grounds for objecting to Hartley Road. Her rejection of the offer of that property, which was a final offer, meant that, by the time she became aware of her error, Hartley Road was no longer available, and she and her family faced the prospect of being made homeless. Her case is that, had the Respondent stated in the Twickenham Road review decision letter or the Hartley Road offer letter the reason why the Respondent considered Twickenham Road was not suitable, she would not have made the error she did and would have considered Hartley Road in a different light.

The appeal came before HH Judge Worster in the Birmingham County Court on 13 April 2010. In his clear and careful judgment handed down on 7 June 2010 he dismissed the appeal. The Judge accepted, on the facts, that the Respondent breached its duty, at the offer (12 August 2009) and original decision (17 August 2009) stages, by not properly considering whether Hartley Road was suitable for the Appellant in respect of its location or distance from schools. He held, however, that the defect was cured by the review process, when the relevant issues were considered. The Judge then went on to consider the question of procedural fairness. He dismissed that aspect of the appeal on the grounds that the Twickenham Road review decision letter of 5 May 2009 and the Hartley Road offer letter of 12 August 2009 made clear to the Appellant and her advisers the possible consequences of a refusal of an offer; it was the Appellant’s decision to take the risk whether the review of Hartley Road would succeed; there is no statutory duty to give reasons for a favourable decision; the need for reasons is related to the opportunity to appeal, and it is only if the applicant is dissatisfied with the decision upon review that he or she has an appeal under section 204(1)(a) of the Act; there is no justification for implying a duty to give reasons at the offer stage or the successful review stage since at neither stage is there a decision amenable to challenge; the potentially disastrous outcome for the Appellant could have been avoided if she had accepted the offer of Hartley Road pending review or if her solicitors had requested clarification before she made her decision.

The Appellant wishes to appeal to this court on the following two grounds. First, the Judge was wrong to conclude that there was no justification for implying a duty to give reasons in the Twickenham Road review decision letter of 5 May 2009 and the Hartley Road offer letter of 12 August 2009. Secondly, the Judge was wrong to state that neither letter contained a decision amenable to challenge by way of review and appeal under the Act.

Mr Nicholas Nicol, counsel for the Appellant, elaborated upon those grounds in a full and helpful skeleton argument and his oral submissions.

He began his submissions with the following six general propositions: (1) there is no general duty to give reasons for administrative decisions; (2) in an appropriate case, a duty to give reasons will be implied at common law where necessary to ensure fairness; (3) the categories of case in which the common law will imply such a duty are not closed or fixed; (4) there is no general principle other than fairness to determine whether reasons should be given; (5) it is necessary to look at the features of each case to see whether there is a duty or not; (6) the features of the present case show there was a duty to give reasons in the letters of 5 May 2009 and 12 August 2009. In respect of the first 5 of those propositions, Mr Nicol relied on R -v- Secretary of State for the Home Dept ex p Doody [1994] 1 AC 531, R -v- Civil Service Appeal Board ex p Cunningham [1992] ICR 816, Lloyd -v- McMahon [1987] AC 325, and R -v- HEFC ex p Institute of Dental Surgery [1994] 1 WLR 242. It is not necessary to examine those cases because Mr Jonathan Manning, the respondent’s counsel, accepted Mr Nicol’s first five propositions.

As to Mr Nicol’s sixth proposition, he explained as follows the particular features of the present case which gave rise to a duty on the part of the Respondent to state in the letter of 5 May 2009 that the Twickenham Road review had been decided in favour of the Appellant only on the ground of the size of the offered property, and to state in the letter of 12 August 2009 the reasons why Hartley Road was considered suitable, including (as I understood his argument) an explanation that Twickenham Road had been unsuitable only by reason of its size.

First, Mr Nicol submitted that each of the letters of 5 May 2009 and 12 August 2009 contained a decision amenable to challenge. He said that the letter of 5 May 2009 was a decision within section 202(1)(b) of the Act and capable of being appealed to the County Court under section 204(1)(a). As I understood him, his first line of argument was that the Appellant could have appealed under that sub-section because she was “dissatisfied” with the letter’s lack of reasons. His second line of argument was that, if the letter had said that, so far as location was concerned, Twickenham Road was suitable, even though unsuitable by virtue of size, the review decision could have been appealed in relation to that issue. He contended that it is therefore necessary to imply a duty to provide reasons in the letter so that it could have been effectively challenged by the Appellant.

He submitted that analysis was supported by section 203(4)(a) of the Act, which provides that, if the review decision is “to confirm the original decision on any issue against the interests of the applicant”, the authority shall notify the applicant of the reasons for the decision. Mr Nicol submitted that, had the Respondent decided on review not only that Twickenham Road was unsuitable by virtue of its size but also that the location of Twickenham Road was suitable, that would have been confirmation “of the original decision on [the] issue” of the suitability of the location within section 203(4)(a), even though the overall outcome of the review was (by reason of the unsuitability of the property’s size) in favour of the Appellant.

Mr Nicol then submitted that the administrative burden on the Respondent of giving reasons (as to unsuitability) in the letter of 5 May 2009 and (as to suitability) in the letter of 12 August 2009 would have been negligible.

Mr Nicol’s next point (as I understood it) was that, unless there is an obligation to give reasons in a successful review decision letter and an offer letter, the housing authority could avoid with impunity, at the stage of those letters, its obligation to take into account all relevant matters. Indeed, Mr Nicol observed, that is precisely what the Judge found had happened in the case of Hartley Road.

Mr Nicol acknowledged that the statutory scheme relating to homelessness in Part 7 of the 1996 Act does not make express provision for the giving of reasons in the case of the two letters under consideration on this appeal. That is not, however, he said, the end of the matter. It still remains to consider whether the common law requires the statutory framework to be supplemented by virtue of the principle requiring reasons to be given where the procedure would otherwise be unfair. He submitted that the application of that principle in the present case is supported by the express recognition in Part 7 of the Act that reasons must be given where (for example, in the case of decisions against the applicant’s interests, and where the authority’s previous decision in a referral case within section 203(1)(b) is confirmed) fairness so requires in order that the authority’s decision is capable of being challenged.

Finally, Mr Nicol attacked the Judge’s observation that the “disastrous” outcome for the Appellant had been of her own making because she could have accepted the offer of Hartley Road while, at the same time, seeking clarification from the Respondent or requesting a review. Mr Nicol submitted that the unfairness which resulted from the lack of reasons in the letters was precisely that the Appellant was not able to make an informed decision as to whether or not to accept the offer. As Mr Nicol put it in his skeleton argument, the Appellant believed that she could refuse Hartley Road with impunity.

Furthermore, Mr Nicol said, that belief explains why the Judge was in error in placing weight on the fact that the Appellant was informed by the Respondent in its standard letters of the consequences of rejecting the offer. She was aware of the warnings, but mistakenly thought that she could reject the offer without fear of the consequences.

Mr Nicol further pointed out that acceptance of the Hartley Road offer could have resulted in the Appellant and her children spending a period of uncertain duration, possibly lasting long enough to disrupt one or more school terms, in a property in a locality in which they did not want to be; and then, if the Appellant’s challenge to suitability succeeded on review, suffering the upheaval of a further move.

Mr Nicol also observed that a request for clarification as suggested by the Judge, even from solicitors, would have held the substantial risk that the Respondent would have treated that as a refusal and released Hartley Road to another applicant, so that it would no longer be available for acceptance by the Appellant.

The Appellant’s case is that, for all those reasons, the Judge’s order should be set aside and it should be declared that the Respondent’s duty to the Appellant under section 193(2) of the Act has not yet been discharged.

This appeal is a second appeal. It does raise issues of sufficiently wide significance to warrant permission to appeal pursuant to CPR 52.13. I am in no doubt, however, that the appeal should be dismissed.

As I have said, Mr Manning, for the Respondent, did not take issue with the first five of Mr Nicol’s general propositions, which I have set out in paragraph [26] above. The only issue on the appeal, therefore, is whether the facts of the present case are such that the omission of reasons from the letters of 5 May 2009 and 12 August 2009 was so unfair as to be in breach of the Respondent’s duty at common law.

I agree with the Judge, substantially for the reasons which he gave, that the facts of the present case were incapable of giving rise to a duty of the Respondent to include in the two letters the reasons which (as I understood the argument) the Appellant says they should have contained concerning the decision in favour of the Appellant on the review of Twickenham Road.

As Mr Manning observed, by way of initial observation, the Appellant’s case is unusual in that she claims a legal entitlement to be given reasons for the review decision in respect of Twickenham Road, not so that she could have challenged that review, but so that she could better deal with a separate and subsequent offer of a quite different property.

I begin with the Twickenham Road review decision letter of 5 May 2009. That was a decision of the Respondent favourable to the Appellant. I reject Mr Nicol’s submission that it could have been appealed to the County Court under section 204 because it gave no reasons. Mr Nicol’s analysis was that, had the review officer decided that Twickenham Road was in a suitable location, but nevertheless the property was unsuitable because it was too small, the issue over suitability of location could have been appealed. The first point to note on that analysis is that the Judge held as a matter of fact that the review officer did not make any finding in relation to the suitability of the location of Twickenham Road, and rested his review decision solely on its inadequate size. I did not understand Mr Nicol to contend that the review officer had been under a legal duty to deal with each and every objection of the Appellant to Twickenham Road, when the objection as to size was sufficient to result in a review decision favourable to Appellant. I can see no basis for any such legal duty.

Secondly, Mr Nicol was unaware of any authority in support of his analysis that the issue of Twickenham Road’s location could have been appealed, notwithstanding the outcome of the review was favourable to the Appellant.

Thirdly, it is trite that, in the case of appeals from one court to another, the appeal is against an adverse order of the court and not against the reasoning underlying a favourable order. I can see nothing in the Act to suggest that a different principle applies in relation to decisions of a housing authority appealable on a point of law under section 204.

Fourthly, I agree with Mr Manning that section 203(4)(b) of the Act does not require reasons to be given in the hypothetical situation postulated by Mr Nicol. Confirmation of the “original decision on any issue” within section 203(4)(b) refers to the resolution of a review against the applicant. It does not refer to the confirmation of a decision which plays no part in the resolution of the review in favour of the applicant. It is so unlikely that Parliament intended to confer a right of appeal on an applicant who succeeds on a review that much clearer words would be required to give rise to a duty on the housing authority to provide reasons in the event, itself somewhat unlikely and which did not in fact occur in the present case, that the review officer concluded that one aspect of the original decision, not dispositive of the review, was correct. In any event, I tend to agree with Mr Manning that, in the case of the suitability of an offered property, there is only one issue for the purposes of section 203(4)(b), even though it rests on several grounds.

So far as concerns the letter of 12 August 2009, I reject Mr Nicol’s submission that, as a matter of principle, every offer letter should give reasons explaining why the offered property is considered to be suitable and reasonable for the applicant to accept. It is obviously implicit in every such offer that the housing authority considers the property to be suitable in all material respects, including location, size and configuration. I cannot see that any purpose would be served by a bald statement to that effect.

Further, I cannot accept Mr Nicol’s submission (as I understood it) that the particular features of the present case required, as a matter of fairness, that there be a specific explanation in the letter of 12 August 2009 that the reason for the successful review in relation to Twickenham Road was only because of the size of that property. The assumption behind the submission seems to be that the Appellant was reasonable in assuming that she had been successful in all of her objections to Twickenham Road, of which location was only one. I do not agree that was a reasonable assumption for her to make. Her case appears to be that she believed the Respondent had made a simple error in offering her Hartley Road, since the review of Twickenham Road had been decided in her favour. She could easily have obtained confirmation of that by speaking to a responsible employee of the Respondent, for example, when arranging to view Hartley Road (as she did).

I also agree with the Judge that any potential unfairness to the Appellant was, in any event, avoided by the prominent warnings in both letters of the consequences of refusing a final offer, and notification of the ability to accept the offer and still to challenge it by way of review. Parliament provided that mechanism of accepting an offer while continuing to challenge it by way of review specifically to mitigate the risk to an applicant of irrevocably losing a property by challenging its suitability. Mr Nicol, as I have said, advanced various reasons why that mechanism had potential practical drawbacks for someone in the Appellant’s situation. Parliament’s chosen mechanism for preventing injustice and hardship may not be ideal in all cases, but I cannot see that its potential drawbacks support the case for the importation of duties arising at common law for unfairness. That is particularly so where the additional duty is said to be the obligation to give reasons, but Parliament has already specified other particular circumstances where reasons must be given: for example, under section 184(3) when the authority decides any issue against an applicant as to his eligibility for any assistance and as to the existence of any duty to him under Part 7 of the Act, and under section 203(4) when, on a review under section 202, the authority decides to confirm its original decision.

For those reasons, I would grant permission to appeal, but I would dismiss the appeal.

I agree.

I also agree.