Zaher v City of Westminster

1. MR JUSTICE MCCOMBE: This is a judgment given on the adjourned hearing of an application for permission to apply for judicial review. The applicant is Mr Ibrahim Zaher, and the proposed defendant is the City of Westminster, which I shall call "Westminster". The claim is for review of Westminster's failure to review the claimant's housing needs or to transfer the claimant from what he submits is unsuitable accommodation, in which he is presently housed.

2. The claimant alleges that Westminster has failed properly to discharge its functions under the Housing Act 1996. I should say that I have been informed by counsel that many of the relevant statutory provisions have now been changed under the Homelessness Act 2002, but that it is the old law that falls to be applied to the present case.

3. At the time of the issue of the claim form on 13th September 2002, the claimant was living with his wife and then three children aged seven, six and nearly three at 59 Laurel Lane, West Drayton in Middlesex. At the time of the hearing before me last week, the arrival of a fourth child was imminent. The evidence indicates that the claimant himself is a part-time driver, earning some £260 per month.

4. Prior to 14th June 2001 the claimant had lived with his family for some three and a half years at a flat at Craven Hill, London, W2, i.e. within the district of the City of Westminster. Unfortunately, on that date the Craven Hill property burnt down and the family was rendered homeless. In that position, they were seen immediately by Westminster's officials. By 2nd August 2001 Westminster gave the claimant a formal notice under section 184 of the 1996 Act acknowledging its duty to make sure that the claimant had a home. The notice offered temporary accommodation at a boarding house in Belsize Park.

5. On 27th September 2001 Westminster offered the claimant alternative temporary accommodation at his present address, the Laurel Lane property in West Drayton. The claimant did not initially accept this accommodation because he regarded it as being too far from the children's school and from his friends and family. By a letter of 3rd October 2001, Westminster stated that it still regarded the property as suitable. The claimant maintained his objections, but on 9th October 2001 Westminster again wrote to the claimant rejecting his arguments, indicating that it considered that it had discharged its duty under section 193 of the Act, and stating that the hotel manager had been instructed to terminate the claimant's booking at the boarding house as from 16th October 2001. The letter informed the claimant of his entitlement to request a review under section 202 of the Act.

6. In the circumstances the claimant says in evidence that he panicked and reluctantly accepted the offer of the accommodation. The family accordingly moved to 59 Laurel Lane on 26th October 2001. He contends that since the move the well-being of his family has deteriorated. The property at Laurel Lane was provided through an organisation or a landlord called Eurolet Management Services, who operated from an address at The Mall in Ealing Broadway. I was told that the claimant had been granted an assured shorthold tenancy of that property, but the precise terms of that tenancy were not apparent from the evidence.

7. In about late May or early June of 2002, because of the family's continuing difficulties at the property, the claimant asked Westminster to move him and his family to another temporary home. On 14th June 2002 Westminster wrote to the claimant's wife in the following terms, and I quote the letter in its entirety:

"You recently asked us to move you to another temporary home. Having carefully considered your circumstances, we have decided not to offer you another temporary home at the moment. The reason for this is that we believe the accommodation you have now is suitable for you.

"Firstly, the temporary accommodation you currently occupy is managed by Eurolets. Any transfer request must first be discussed with them. You can contact Eurolets and make an appointment with them to visit you. We cannot accept transfer requests that have not come from Eurolets. They will decide whether they feel you are in priority need for a transfer. If they believe this to be the case, they will refer your case to us. We would then decide whether to offer you a transfer to alternative temporary self-contained accommodation. So, at this point we are not considering you for a move to alternative temporary self-contained accommodation because we have not received this documentation. Once again, I advise you to address this matter with Eurolets directly.

"Also, we felt that there are insufficient grounds for a transfer on social grounds. I did refer your case to our education liaison officer who felt that because your children are not of exam age, it would be reasonable of us to expect you to move your children to a school nearer to your current address. That way they would be able to get to school on time and there would be less pressure on you to travel so far to take them to school.

"If you have any questions about this matter, please phone us; our call centre officers will be happy to answer your enquiry."

The letter is then signed off.

8. On 26th June 2002, solicitors acting for the claimant wrote to Westminster complaining about the direction to the claimant to contact Eurolets. The solicitors referred to the claimant's case as to the unsuitability of the property, and asked for a review of the decision not to provide alternative accommodation. Reminders following that letter were sent on 12th August 2002 and on 28th August 2002, but received no reply. As I say, these proceedings were commenced on 13th September 2002.

9. By the order of Newman J on 18th October 2002, the application for permission was adjourned to an oral hearing which took place before Davis J on 24th October 2002, when it was ordered by consent that the claimant should have permission to amend the relief sought. The application for permission was to be adjourned to a date to be fixed and there were directions for evidence. The application was directed to follow if permission was granted.

10. In evidence filed on behalf of the council, the council's view of the matter is stated, the relevant witness statement being made by Ms Claire Morgan, who apparently is employed by the council's independent contractors, WMS Hayward, who are responsible for the provision of accommodation to those owed a duty under section 193 of the Act. In paragraph 7 and following of the witness statement, Ms Morgan says this:

"7. This witness statement does not purport to set out the legal argument of the Council but it may assist if I state that the Council in opposing the application relies upon the following facts and matters:-

(i) Mr Zaher refused the accommodation on two occasions and gave reasons for his refusal;

(ii) The Council considered the reasons and decided that the accommodation was suitable;

(iii) The Council informed Mr Zaher of his right to have the decision of suitability reviewed;

(iv) Mr Zaher accepted the accommodation and did not seek a review of the decision of suitability.

"8. I now turn to the letter dated 14th June 2002. The second paragraph identifiesI was a procedure the Council adopted in order to deal with a request for transfer from accommodation the Council does not manage. Eurolets was the first port of call because they managed the accommodation occupied by Mr Zaher and would have been more knowledgeable about the accommodation and its locality. For those reasons the Council asked Mr Zaher to first contact Eurolets.

"9. As to the third paragraph of that letter, the Council as a central London authority has for many years been faced with very large numbers of applications under the Act (and before it under the Housing Act 1985) and has had to react to that demand by providing accommodation outside of the City of Westminster. Whilst treating each case on its merits, the Council when making decisions of suitability has often had to take account of the fact that there will be good educational and medical facilities available within those areas. Whilst it may be preferable for children to stay at their current schools, there are many reasons why and circumstances in which children of families being provided with housing assistance and of families who are not may have to move. This is a case in which the Council considers a change of school would be reasonable should the parents decide that the journey is too long.

"10. It may assist if I state that the Council in opposing the application relies upon the following facts and matters:-

(i) its previous decision of suitability and the absence of a request for a review;

(ii) the fact that Mr Zaher has been asked to first contact Eurolets;

(iii) the fact that there will be good educational and medical facilities available within the area of 59, Laurel Lane.

"11. The Council has not carried out a review as requested by letter from Mr Zaher's solicitors by letter dated 26th June 2002. The Council does not consider that there was a decision to review. If there was, the Council will also rely upon the facts and matters set out above in support of its grounds for contesting the claim."

11. The claimant maintains his case as to the unsuitability of the accommodation and submits that Westminster's stance in refusing to act, either by way of transfer or by provision of a review, is a breach of the continuing duty to provide suitable accommodation pursuant to the 1996 Act. In evidence filed in response to that of Ms Morgan, pursuant to the order of Davis J, the claimant says that his wife suffers from depression, and requires the assistance of family and friends who live too far away to help. It is said that the children's schooling in Westminster is impaired by the distance to school from West Drayton, and that the claimant does not wish to move the children since the accommodation provided is in any event merely temporary. The school has stated that a move will be detrimental to their education. The claimant himself, it is said, has had difficulty at work because of problems of time-keeping from his present address.

12. The claimant's submission in these circumstances is that under section 193 of the Act, Westminster has a continuing duty for the two year minimum period identified in that section to secure that accommodation is available to the claimant and that, pursuant to section 206 of the Act, the accommodation must be "suitable". If, owing to a change of circumstances, the accommodation provided becomes unsuitable during the relevant period, Westminster is under a duty to secure alternative suitable accommodation. Thus, submits the claimant, Westminster were obliged in June 2002 to transfer the claimant to other accommodation accordingly, or at least were obliged to conduct a statutory review under section 202 of their decision of 14th June of that year not to accept the case of unsuitability.

13. The claimant, accordingly, applies for orders to achieve that result, or a result close to it. Westminster, on the other hand, submits that on acceptance by the claimant of the West Drayton property in October 2001, it discharged its duty to secure suitable accommodation, and that its only remaining obligation under section 206 is to ensure that that accommodation remains available to the claimant during the subsistence of the duty under section 193, whether or not the accommodation remains suitable. It is submitted there is no obligation upon it to revisit the question of suitability after the initial offer of accommodation has been made, and accepted by an applicant. In so far as accommodation provided by the authority does indeed become unsuitable, then, submits Westminster, the only recourse is to section 175(3), whereunder a person is not to be treated as having accommodation at all, unless it is such as is reasonable for him to continue to occupy. Thus, such a person would once again be homeless within the meaning of section 175(1), and the authority would again have to revisit the question of whether a duty arose under section 193.

14. Further, Westminster submits, on whatever grounds the claimant sought a reconsideration of suitability of this accommodation of June 2002, he duly requested a review under section 202 of the Act. In the absence of notification of the decision upon review within eight weeks, the remedy was an appeal on a point of law to the County Court under section 204 of the Act within 21 days of the due date. That time, says Westminster, has now passed, and the claimant cannot be permitted to circumvent the statutory time limit by way of an application to this court.

15. It is convenient, I think, to deal first with the procedural question as to the jurisdiction of this court in the present circumstances. Is the claimant's recourse to the court precluded by his failure to invoke in time the statutory right of appeal to the County Court on the basis that the decision of 14th June 2002 was amenable to such a review and to such an appeal thereafter? To understand this argument it is necessary to recite the provisions of section 203 and section 204, which are:

"203(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.

Nothing in the following provisions affects the generality of this power.

"(2) Provision may be made by regulations-

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and

(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

"(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.

"(4) If the decision is-

(a) to confirm the original decision on any issue against the interests of the applicant, or

(b) to confirm a previous decision-

(i) to notify another authority under section 198 (referral of cases), or

(ii) that the conditions are met for the referral of his case,

they shall also notify him of the reasons for the decision.

"(5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204).

"(6) Notice of the decision shall not be treated as given unless and until subsection (5), and where applicable subsection (4), is complied with.

"(7) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision.

"(8) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him or on his behalf.

Right of appeal to county court on point of law.

"204(1) If an applicant who has requested a review under section 202-

(a) is dissatisfied with the decision on the review, or

(b) is not notified of the decision on the review within the time prescribed under section 203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

"(2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

"(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.

"(4) Where the authority were under a duty under section 188, 190 or 200 to secure that accommodation is available for the applicant's occupation, they may continue to secure that accommodation is so available-

(a) during the period for appealing under this section against the authority's decision, and

(b) if an appeal is brought, until the appeal (and any further appeal) is finally determined."

16. It was common ground between the parties that in this case no review of the 14th June decision was conducted at all. It was also agreed that this was, therefore, a case to which section 204 applied because the claimant had not been notified of the decision on the review within the prescribed time under the regulations; namely, eight weeks. Therefore an appeal was laid to the County Court on a point of law against the original decision of the 14th June, if indeed it was a decision at all.

17. During argument I raised with counsel the question whether section 204 only applied if there had actually been a decision taken on review, with which the applicant was either dissatisfied or of which he had not been notified. In other words, the section did not apply to cases where the review had not taken place at all. However, both sides eschewed any such construction, and I shall assume, therefore, that section 204 did apply in this case.

18. If this is right, the County Court would have been able to deal with the points of law arising out of the original decision in exactly the same way as this court would have been able to deal with such points on a judicial review. Neither court would be able to reconsider the facts, as the local authority would have been able to do on a review. The County Court would be confined to confirming, quashing or varying the original decision. It would have no power, it is submitted, to order a statutory review to take place under section 202. However, this court would have power, it is submitted by the claimant, to make such an order if considered desirable in the court's discretion.

19. The absence of a power in the County Court to order the conduct of a review in the face of inaction by the authority adds to my concern as to whether section 204 really applies in a case where no review has been conducted at all. This might suggest that the remedy envisaged by the Act in such circumstances is indeed judicial review, with a mandatory direction to the authority to carry it out. However, the matter is not clear, and I proceed now, as I say, on the basis that section 204 did apply on the circumstances of this case.

20. Mr Russell, for the claimant, submits that judicial review does lie because of the absence of a County Court power to order a statutory review. He submits that this is one of those cases, like R v Brent London Borough Council, ex parte Sadiq [2000] 33 HLR, page 525, where the court should exercise its residual discretion notwithstanding the availability of a statutory appeal procedure. He submits that the action that required to be taken and the complications as to the extent of the duty under section 193 suggest that judicial review is indeed the appropriate remedy.

21. Mr Warner, for Westminster, submits that the court should be very cautious in allowing the appeal processes to be circumvented by judicial review outside the timings envisaged by section 204. He referred me to the case of Begum v Tower Hamlets London Borough Council [2000] 1 WLR, page 306, and in particular the comments of Auld LJ at page 314, to the effect that the policy behind section 204 was to transfer cases of this type to the County Court, to the exclusion of judicial review.

22. In reply Mr Russell pointed me further to the provisions of 203(5), which I shall read again in this context, and which provide:

"In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made."

23. He submits that since Westminster never informed the claimant of his right of appeal to the County Court, time never began to run against the claimant under section 204(2). However, section 203(6) provides that the effect of failure to give notice of a right of appeal is that notice of the "decision" shall not be treated as given, unless and until section 203(5) is complied with. It seems to me that this indicates that section 203(5) comes into play when there is a decision to notify, and not when there has been no decision at all. This may be another reason for questioning whether section 204 applies at all in the present circumstances.

24. In my view, the failure of Westminster to make its position clear following the request for a review, indeed its failure to respond at all to the claimant's solicitor's letters, notwithstanding two reminders, is of considerable importance in considering whether this court should be prepared to entertain an application to its residual discretion in this case. I believe that if Westminster's point was to have real substance, its correct response would have been to point out its contentions as to the ambit of the duty under the Act, and to state that, given the contents of its letter of 14th June and its failure to carry out a review under section 202, if the claimant wished to challenge its standpoint, it should invoke the procedure under section 204. It could have said at the same time what the appeal period was, so as to comply in spirit with section 203(5). It did not do any of this.

25. Of course, the claimant was represented by solicitors at this stage and it is clear they were aware of the right of review and were, accordingly, probably aware of the right of appeal. However, given the uncertainties in the face of the complete silence of Westminster in those circumstances, I decline to accept Westminster's objection to the jurisdiction, and propose to consider whether or not to exercise the residual discretion of this court that it is accepted exists in certain circumstances.

26. I turn to the substantive questions. First, what is the extent of the duty arising under sections 193 and 206 to secure the availability of "suitable" accommodation, and was it fully performed once and for all in October 2001 when the claimant accepted the Laurel Lane property? Mr Warner submits that the structure of the Act, given the well-known burden upon housing authorities, is clearly to achieve finality in these matters, and that to impose an on-going obligation of the review of suitability of accommodation for individual applicants would frustrate that objective. However, it is clear that suitability is not a concept set in stone. As Collins J observed in R v Newham London Borough Council, ex parte Begum 32 HLR:

"While I have considerable sympathy with the Council, I do not think that the qualifications which Mr Woolf submits are necessary can be read into the words of the statute. Parliament has not qualified the duty in any way: it could have done. However, the situation for the Council is not quite as desperate as might be thought. While the duty exists, no court will enforce it unreasonably. Mr Luba accepts that it would be unreasonable for an applicant to seek mandamus within a few days of the duty arising if it were clear that the Council was doing all that it could, nor, in its discretion, would a court make such a order. Indeed, permission would probably be refused. Furthermore, [and this is the important passage] whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks."

27. This suggests that in many cases an authority, confronted with an emergency, may well correctly assess a property as suitable in the short term, but may recognise that in the medium to long term of a two year duty period, it would not continue to be suitable. In my view, to regard the authority's duty as discharged once and for all on the provision of short term emergency accommodation suitable for that limited purpose would be a far too limited and artificial construction of the duty. I take a similar view with respect to Mr Warner's submission that section 175(3) would apply in such circumstances so as to make the applicant "homeless within his own home", as Mr Russell graphically put it. I cannot envisage that Parliament intended the concept of homelessness to apply in such circumstances. It is not without moment to my mind to notice that the Act sets out in section 177 certain circumstances in which it is not reasonable for a person to continue to occupy accommodation, and to provide for the Secretary of State to specify by order other circumstances of this nature. It, of course, remains for argument whether that precludes the application of section 175(3) to circumstances outside section 177, but the latter section suggests to me that section 175 was never intended to deal with a constantly shifting concept such as suitability.

28. It has, of course, been held by the Court of Appeal in Alghile v Westminster City Council [2001] 33 HLR, page 57, that under this legislation it is not open to an applicant for accommodation under part VII of the Act to accept the offer of accommodation and at the same time to challenge the suitability of the accommodation by way of review. I was referred to and bear expressly in mind the passage in Tuckey LJ's judgment in that case at pages 633 to 634, paragraphs 29 to 32. It is, however, common for persons applying for accommodation under part VII to be moved out of temporary homes to another until something medium or long term is provided for the future. This is the type of situation considered by Collins J in the Newham case, to which I have referred. It seems to me to be wrong to conclude, from an application by analogy of the decision in Alghile, that the acceptance of such short term accommodation, suitable in that sense for a short time, discharges once and for all the duty arising under sections 193 and 206. If an authority is entitled to change its attitude to suitability of its own motion, or to recognise that it will inevitably have to reconsider the matter within the two year period, why should not the applicant invite the authority to enter into precisely such a reconsideration?

29. Clearly, authorities, and these courts, will be slow to accept challenges to suitability where the alleged changes in circumstances are little more than a disguised acceptance of accommodation with a request for review of the nature that was indicated to be impermissible in the Alghile case. There would obviously have to be a change of circumstances of substance since the original acceptance of the accommodation before an authority could be under any obligation to reconsider the suitability of such accommodation, or, alternatively, circumstances may have had to turn out so differently from that expected by anybody at the outset that a reconsideration is required.

30. Thus, in my view, Westminster was right to reconsider the claimant's circumstances on the merits, as it claimed to have done in its letter of 14th June 2002. However, in my view, its decision was flawed, certainly for one reason and possibly for two. First, it seemed to indicate that whatever the position, it would not accede to a request for transfer or a review of suitability prior to reference to Eurolets. I have already quoted that letter in full. The second paragraph seems to me to indicate an unwarranted and self-imposed fetter upon Westminster's statutory discretions.

31. The second flaw may be, although it is not the principal ground of my decision, that as a result Westminster appears to have made a preliminary and cursory review of the merits of the claimant's case, but with reference to only one of the matters upon which the claimant was relying in asking for a move to new accommodation.

32. It seems to me, therefore, that I should quash the decision of 14th June and direct Westminster to reconsider the suitability of the present accommodation occupied by the claimant. This judgment, of course, in no way indicates what the correct result would be on the facts of any such review.

33. I should indicate before counsel rise that I have been greatly helped both by the written and oral submissions of counsel in this case.

34. MR RUSSELL: The claimant's costs -- (inaudible) effectively be a substantive judicial review hearing following the adjourned permission hearing.

35. MR JUSTICE MCCOMBE: It was indicated it would be permission with review to follow if leave was granted, so in so far as necessary, I grant leave and make the order.

36. MR RUSSELL: Secondly, I seek an order for a public funding assessment of the claimant's costs.

37. MR WARNER: I cannot resist those.

38. MR JUSTICE MCCOMBE: I will make those orders. They seem to follow. As indicated, I am very grateful to you both. It was a very interesting case. Thank you very much.