The Mayor and Burgesses of The London Borough of Wandsworth v Jerome Young

Mr Justin Bates KC, who appeared for Mr Young with Mr Grütters, did not suggest that District Judge Daley’s finding that Mr Young had accepted the offer of accommodation at 25 Diprose Lodge is open to challenge. His argument (like that of Mr Grütters before Judge Saggerson) was rather that the main housing duty could not have come to an end without the Council having informed Mr Young both of that (with reasons) and of his right to request a review of such a decision. While the Council told Mr Young in its review decision that the main housing duty had been discharged, it did not inform him that he had the right to request a review. It follows, Mr Bates submitted, that the main housing duty was continuing when the matter was before the District Judge (and, in fact, has still not ceased).

As Mr Bates recognised, section 193(6)(c) of the 1996 Act states in unqualified terms that a local housing authority “shall cease to be subject to the duty under this section if the applicant … accepts an offer of accommodation under Part VI”. He argued, however, that the combined effect of sections 184 and 202 is to require the applicant to be notified that the authority considers a condition specified in section 193(6) to have been satisfied (together with reasons for concluding that no duty is now owed) and that there is a right to request a review of such a decision.

Mr Bates stressed the central importance of section 202 of the 1996 Act in the statutory scheme. Section 202(3) stipulates that a request for review must be made “before the end of the period of 21 days beginning with the day on which [the applicant] is notified of the authority’s decision or such longer period as the authority may in writing allow”. The evident purpose, Mr Bates said, is to ensure that requests for reviews are made quickly and, since that depends on the applicant being “notified of the authority’s decision”, it must be incumbent on authorities to notify applicants of their decisions. Consistently with that, Mr Bates submitted, section 184 applies. That being so, as and when an authority decides that it no longer owes the main housing duty, it must “notify the applicant of their decision and … inform him of the reasons for their decision” (in compliance with section 184(3)) and “also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made” (in compliance with section 184(5)).

In the present case, Mr Bates argued, there was incorporated in the letter containing the review decision a distinct decision that the main housing duty had been discharged. The letter thus needed to inform Mr Young both of his right to appeal to the County Court against the review decision (as it did) and of his right to request a review of the discharge of duty decision (which it did not). The main housing duty did not, therefore, end.

We were referred to three main authorities in this context: Warsame v Hounslow LBC [2000] 1 WLR 696 (“Warsame”), Ravichandran v Lewisham LBC [2010] EWCA Civ 755, [2011] PTSR 117 (“Ravichandran”) and R (Bano) v Waltham Forest LBC [2025] EWCA Civ 92, [2025] 1 WLR 2557 (“Bano”).

In Warsame, an attempt to appeal pursuant to section 204 of the 1996 Act was rejected in the County Court on the basis that section 202(1)(b) “had no application to a decision under section 193(7) whether accommodation offered under Part VI of the Act was suitable accommodation”: see 704. Allowing an appeal, Chadwick LJ, with whom Rattee J agreed, commented that the Circuit Judge’s approach “fails to give due weight to the width of section 202(1)(b)”: see 704. Chadwick LJ explained that the language of section 202(1)(b) was “apt … to apply to a decision that a duty, once owed, is owed no longer” and that “it was the intention of Parliament that decisions as to matters which, if they existed, would cause a duty to cease, are decisions which can be the subject of a request for review”: see 705-706.

Mr Bates focused on the following passage from Chadwick LJ’s judgment, at 704-705, in which I have added the emphasis:

“It is plain that section 202(1)(b) is directed, at least, to the question whether a duty arises. The phrase ‘any decision as to what duty (if any) is owed’ reflects the words in section 184(1)(b). That section requires the local authority to make enquiries to satisfy themselves ‘whether any duty, and if so what duty, is owed’ under the provisions of the Act.

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 and excludes decisions whether a duty which has arisen has ceased.”

Mr Bates argued that Chadwick LJ’s linking of section 202(1)(b) and section 184(1)(b) indicates that section 184 is applicable where section 202(1)(b) would be and, hence, that it is in point where a local housing authority decides that “a duty, once owed, is owed no longer”. However, Chadwick LJ drew the parallel with section 184(1)(b) when explaining that section 202(1)(b) applies to “the question whether a duty arises”, not as supporting his view that section 202(1)(b) extends to “decisions as to matters which, if they existed, would cause a duty to cease”. It is fair to say that, in the context of section 202(1)(b), Chadwick LJ considered that words reflective of those used in section 184(1)(b) extended to a “decision that a duty once owed is no longer owed”, but it need not follow that a similar conclusion is to be drawn in the context of section 184(1)(b): regard must be had to how section 184(1)(b) fits into section 184 and Part VII more generally.

In Ravichandran, applicants refused an offer of accommodation under Part VI of the 1996 Act, but, following a review, the local housing authority confirmed that it considered the property suitable. A few months later, the authority informed the applicants that it was “ending its duty to assist you with housing under section 193(7)”, adding that the applicants could request a review of the decision within 21 days. The applicants duly asked for such a review, but the authority’s position remained the same: it restated that it no longer owed a duty under section 193. The applicants appealed to the County Court without success, but the Court of Appeal decided in their favour, holding that the second review had been defective.

At the time (though not now), section 193(7F) provided:

“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.”

Giving the judgment of the Court of Appeal, Stanley Burnton LJ explained in paragraph 35(5) that an applicant was “entitled to a review of the suitability requirement in section 193(7F) by virtue of section 202(1)(f) and of the reasonableness requirement in section 193(7F) by virtue of section 202(1)(b)”, observing that it was “both possible and desirable for both requirements to be reviewed at the same time”. Stanley Burnton LJ continued:

“(6)

The applicant is also entitled to a review of the decision of the authority as to the discharge of its duty under section 193(7) by virtue of section 202(1)(b). If the review takes place before refusal of the final offer of accommodation, it will strictly be a review of the intention that the offer will, on refusal, result in cessation of the authority’s duty. If the review takes place after the refusal of accommodation, it will be a review of the authority’s confirmation that its duty has ceased by virtue of satisfaction of the statutory preconditions for such cessation. The applicant should be informed of the right to such review.

(7)

It is desirable that such a review of the decision of the authority as to the discharge of its duty under section 193(7) takes place at the same time as the review of the suitability requirement and the reasonableness requirement in section 193(7F). If it is intended that it will take place at the same time, the applicant should be so informed.”

Earlier in the judgment, in paragraph 31, Stanley Burnton LJ had said:

“In the present case it is clear from the correspondence … 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’s case is that its decision taken then, even if only confirmatory of a prior automatic discharge, was reviewable under section 202(1)(b).”

Stanley Burnton LJ thus considered that decisions which are merely confirmatory can potentially be subject to review. It is also to be noted that he said that an applicant should be informed of the right to a review of “the decision of the authority as to the discharge of its duty under section 193(7) by virtue of section 202(1)(b)”.

In Bano, the applicant, Mrs Bano, had refused a “private rented sector offer”, but she maintained that the offer letter had been defective and so that she was still owed the main housing duty. She sought judicial review in respect of the local housing authority’s refusal to accept that the duty continued, but this Court dismissed the claim on the basis that she had had available to her, but had failed to invoke, the procedure (viz. review and appeal) which was meant to apply in relation to decisions as to whether a duty under section 193 of the 1996 Act was owed. In the Court’s view, Mrs Bano could have requested a review both in relation to the offer letter and in respect of the authority’s later conclusion that its duty to the applicant had ceased.

In the course of my judgment (with which Peter Jackson and Warby LJJ agreed), I expressed the view that refusal of a private rented sector offer of itself brings the main housing duty to an end. I said in paragraph 55:

“It is doubtless the case that, as Ms Davies [i.e. counsel for Mrs Bano] said, local housing authorities commonly tell applicants who have refused offers that they consider their duties to have come to an end. No doubt, authorities also sometimes (though I would guess less often) inform applicants who have accepted private rented sector offers that the authorities’ duties have ceased. However, the legislation does not specify that an applicant must be told that the authority’s duty has terminated, and I do not think that the decided cases establish that an authority is under an obligation to inform an applicant that it considers its duty to have ceased or even to make a decision to that effect. To the contrary, Ravichandran seems to me to lend support to the proposition that, as section 193(7) of the 1996 Act is now framed, there is ‘automatic discharge’ where an offer of accommodation under Part VI is refused and, if that is right, there must similarly be ‘automatic discharge’ under section 193 (7AA) where a private rented sector offer is refused or accepted provided that the applicant has been informed of the matters mentioned in section 193 (7AB).”

Later in my judgment, when explaining why I considered that Mrs Bano had been entitled to request a review under section 202(1)(b) of the 1996 Act when she received the offer letter, I said this in paragraph 60:

“Ms Davies submitted that, while the offer letter of 11 June 2020 specifically informed Mrs Bano that she had a right to request a review of the suitability of the accommodation, it did not tell her that she could request a review on any other basis. However, (a) section 193(7AA) and (7AB)(b) of the 1996 Act impose a requirement to inform an applicant of the right to request a review of suitability but not on any other basis, (b) the offer letter included a reference to a right of review under section 202 which did not mention suitability … and (c) in any event, nothing in section 193, section 202 or elsewhere in the 1996 Act makes the right to request a review under section 202(1)(b) conditional on the applicant having been informed of the right.”

I thus noted that “section 193(7AA) and (7AB)(b) of the 1996 Act impose a requirement to inform an applicant of the right to request a review of suitability but not on any other basis”. However, Mr Bates observed that (a) no one appears to have referred to section 184 in Bano, (b) Bano concerned the provisions relating to private rented sector offers, which, he said, constitute a self-contained scheme and (c) Bano is under appeal to the Supreme Court (although Mr Bates recognised that as matters stand this Court is bound by its decision in Bano).

It is crucial to Mr Young’s case that the Council was obliged to inform him that he had a right to request a review of the decision that the main housing duty had been discharged which, he says, was incorporated in the letter containing the review decision. It is not enough for Mr Young to show that the letter included a decision which was susceptible to a further review. For Mr Young to succeed, it must have been incumbent on the Council to tell him that he was entitled to request such a review.

As I have said, Mr Bates argued that such an obligation is to be derived from sections 184 and 202 of the 1996 Act. I have not, however, been persuaded.

Section 202(3) of the 1996 Act states that a request for review “must be made before the end of the period of 21 days beginning with the day on which [the applicant] is notified of the authority’s decision or such longer period as the authority may in writing allow”. This means that, once an applicant has been notified of a decision, he must request a review within 21 days unless the local housing authority agrees otherwise. Notification of a decision therefore plays an important role. Without it, the time limit for which section 202(3) provides will not apply. Section 202(3) does not, however, provide for an authority to be under an obligation to notify an applicant of a decision, let alone impose a requirement that an authority inform an applicant of a right to request a review. While section 202(3) refers to an applicant being “notified of the authority’s decision” (emphasis added), there is no reference to notification of a right to request a review.

Nor, in my view, does section 184 of the 1996 Act assist Mr Young. My reasons are as follows:

I would add that if, contrary to my view, a local housing authority continued to owe the main housing duty where an applicant asked for review of suitability and the review officer (a) decided that the accommodation was suitable, (b) added that the main housing duty had ceased, (c) explained that there was a right of appeal but (d) did not refer to the possibility of any further review, that could give rise to considerable difficulty. I would guess that there have been many review decisions along these lines.

In short, it seems to me that, even supposing (which is far from clear) that the letter containing the review decision incorporated a distinct decision which was susceptible to a further review, the Council was not obliged to inform Mr Young that he was entitled to request such a review. That being so, the appeal must fail.

Supposing that I am wrong and that the Council had a duty to tell him that he was entitled to another review, was it open to him to rely on that as a defence before District Judge Daley?

It was common ground before us that there can be circumstances in which a “public law” defence can be advanced in possession proceedings. In this connection, we were referred to Wandsworth LBC v Winder (No. 1) [1985] AC 461, Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367 and Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104. In the last of these cases, Lord Neuberger, giving the judgment of the Court, said in paragraph 81 that, “where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the county court”.

In the context, however, of Part VII of the 1996 Act, Parliament has established procedures for review and appeal. In general, accordingly, issues as to what duties are owed under Part VII are to be addressed through those procedures.

The cases to which we were taken in this connection included Tower Hamlets LBC v Rahanara Begum [2005] EWCA Civ 116, [2006] HLR 9 (“Rahanara Begum”), Godson v Enfield LBC [2019] EWCA Civ 486, [2020] HLR 1 (“Godson”) and Bano.

In Rahanara Begum, the defendant resisted possession proceedings on the ground that the claimant owed her the main housing duty. She won in the County Court, but the Court of Appeal decided in favour of the claimant. The Court considered that it had been open to the defendant to request a review under section 202 of the 1996 Act or to appeal under section 204, that the District Judge ought to have concluded that it was now too late for her to do so and that, as a result, he should have dealt with the claim on the basis that the claimant’s decision that it owed no further duty to house the defendant was correct.

Neuberger LJ, with whom Ward and Tuckey LJJ agreed, said this in paragraphs 32-33 of his judgment:

“32.

Part 7 of the 1996 Act requires a housing authority to be the initial decision-maker on questions concerning a person’s homeless status and housing rights, and it includes a tolerably clear appeals procedure, with relatively short and fairly strict time limits, for the benefit of a person dissatisfied with any decision of the authority. Where, as here, possession proceedings are brought by the authority, and the defence involves impugning a decision of the authority under Pt 7 of the 1996 Act, which could have been, but was not, appealed, and the time for appeal has long since expired, it appears to me to be wrong in principle that the court hearing the possession action should be able freely to reconsider, and if necessary to reverse, the authority’s decision with regard to its duty.

33.

Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case s.193, without taking the concomitant burden, namely the procedure and time limits in ss.202–204.”

In Godson, Lewison LJ (with whom I agreed) quoted paragraphs 32-33 of Neuberger LJ’s judgment in Rahanara Begum and said in paragraph 24 that they were “plainly right”. That being so, it was not open to the appellant to dispute a conclusion reached in a review decision which he had not appealed.

In Bano, I referred in paragraphs 32-35 of my judgment to the principle that judicial review should be refused where an alternative remedy exists. In paragraph 70, I said:

“In my view, it is not appropriate to allow Mrs Bano to claim judicial review. I do not think that there are ‘pressing’ or ‘exceptional’ circumstances which would warrant permitting Mrs Bano to pursue her claim for judicial review notwithstanding the fact that she had available to her, but failed to invoke, the procedure (viz review and appeal) which was meant to apply in relation to decisions as to whether a duty under section 193 of the 1996 Act was owed. In Nipa Begum [2000] 1 WLR 306, Auld LJ said that, ‘save in the most exceptional circumstances, the residual jurisdiction of the High Court should not be regarded as a backstop for the appellate jurisdiction of the county court under section 204 where the applicant for housing assistance has failed to appeal a review decision within the 21 days’ time limit’. I do not consider such exceptional circumstances to exist in the present case ….”

There may, of course, be circumstances in which it is appropriate for a District Judge hearing a possession claim to have regard to the possibility of a local housing authority’s decision being wrong. If, for example, there were a pending appeal against such a decision, or the defendant had avowed an intention to appeal and was in time to do so, the District Judge could be expected to adjourn. That is by no means, however, to say that a District Judge should decide an issue in respect of which the review and appeal procedures are or were available. To the contrary, where the defendant was informed of an authority’s decision and failed to request a review of it, or failed to appeal a review decision of which he had been notified, it would (as Neuberger LJ said in Rahanara Begum) be “wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later”.

In the present case, Mr Young was told by the Council in the letter of 20 July 2020 containing the review decision that the main housing duty had been discharged. The letter of 12 November 2020 enclosing the notice to quit also referred to Mr Young’s temporary accommodation coming to an end as a result of his signing the tenancy agreement for 25 Diprose Lodge.

In the context of the issue I am now addressing, it is to be assumed that, contrary to the conclusions I have reached earlier in this judgment, the Council ought to have informed Mr Young that he had a right to request a review of its conclusion that the main housing duty had ceased. Mr Bates argued that the Council’s failure so to inform him means that there were “exceptional circumstances” making it appropriate to allow him to dispute the point in the present proceedings.

I do not agree. There is no suggestion that Mr Young was not made aware of the Council’s understanding that the main housing duty had come to an end. Section 202(3) required him to request any review of such a decision within 21 days of notification unless the Council allowed a longer period, but he neither requested a review within 21 days nor has ever asked the Council to agree to an extension of time. As Mr Bates stressed, Mr Young was not told of any right to review at the time, but the Council did not issue its claim until more than five months after it had served the notice to quit and, by the date the matter came before District Judge Daley, more than three years had elapsed since Mr Young had been told of the review decision. Even taking account of the fact that Mr Young was not alerted to the possibility of a review by the Council, he had had ample opportunity to request one and the circumstances were not such as could, exceptionally, make it permissible for him to pursue any challenge to the Council’s view in the possession proceedings rather than via the review and appeal procedures for which Parliament has provided.

It follows from my conclusions earlier in this judgment that, in my view, this appeal should be dismissed. I am anyway doubtful as to whether acceptance of Mr Young’s case would have been likely to assist him. If, as was argued on his behalf, it was incumbent on the Council to notify him that he had a right to a further review and he could raise its failure to do so in the present proceedings, he could presumably ask for such a review now. If, however, he in fact accepted the Council’s offer of accommodation at 25 Diprose Lodge, as District Judge Daley found, the conclusion would once again be that the Council has ceased to owe him the main housing duty and that he had no right to continue to occupy 15 Ganley Court.

I would dismiss the appeal.

District Judge Daley referred in his judgment to Mr Young’s good fortune in obtaining the assistance of Mr Flack. I would echo that, but add that he has also been fortunate in having the able representation of Mr Bates and Mr Grütters.