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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Obiorah v London Borough of Lewisham [2013] EWCA Civ 325 (12 April 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/325.html Cite as: [2013] EWCA Civ 325 |
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CARR
1CL40126
Strand, London, WC2A 2LL |
||
B e f o r e :
Lord Justice Lloyd Jones
and
Lord Justice McCombe
____________________
CHUKWUDUMAEBI OBIORAH |
Appellant |
|
- and - |
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LONDON BOROUGH OF LEWISHAM |
Respondent |
____________________
Nicholas Grundy (instructed by London Borough of Lewisham, Legal Services) for the Respondent
Hearing date: 28 February 2013
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
(B) Background Facts
"Due to high demand for all types of social housing it is likely to be a considerable time before you are made a permanent offer [of accommodation]".
"Priority Homeless
Under the Housing Act 1996, as modified by the Homelessness Act 2002, any council accepting someone as priority homeless has the right to make them only one suitable offer. If you are accepted by Lewisham Council as priority homeless, it may become necessary at any time after that for the Council to make you one offer in this way.
The Council can make a homeless household a management offer at anytime from the date they are accepted under Part VII of the Housing Act 1996. This may not be a property the applicant has bid for. Applicants can continue to bid through Homesearch. If an applicant bids and is also matched given a management offer for a different property they can be matched to either property, depending on their position on the list.
If you do not want to accept it, you are advised to request areview
of the offer (see Section 3.8), as this offer will discharge the council's duty to rehouse you under the Homelessness Act 2002 "
It will be necessary to return later to another provision of this scheme.
"I have decided to withdraw the offer of accommodation at 4 Forster House, Whitefoot Lane BR1 5SD as it was not both suitable and reasonable for you to accept. I have asked Lewisham Homes to terminate eviction proceedings and also requested that your application be activated so that your one offer of accommodation is reinstated.
The following applies to your application and has been added to your details.
- The Council should only nominate you to accommodation, within the Lee Green Ward.
- Medical recommendations – Lift essential. Can not manage internal stairs, must have heating in all rooms.
I'm afraid that your request for a Council tenancy can not be granted as the London Borough of Lewisham no longer have local authority housing stock. Lewisham Council has transferred its stock to Housing Associations. All Social Housing is now owned by Housing Associations.
Please note that your application is on the 1 bedroom list as you currently have a 1 bed housing need and according to the Council's Allocations Policy, both you and the Council are able to bid for properties on your behalf."
"If you feel that the offer of accommodation is unsuitable for your needs then you are entitled to request areview
of the suitability. This
review
should be requested within 21 days of the offer.
…..
The consequences of refusing an offer of accommodation which the authority are satisfied is suitable for your needs, will be that the s.193 (5) duty is discharged. This means that no further accommodation will be arranged and you will be required to vacate your current temporary accommodation.
In order to avoid becoming homeless the Council recommends that you accept the property pending the result of thereview
. If you are unsuccessful with your
review
request, you will then be able to remain in the offered temporary accommodation, furthermore the Council will continue to owe you a full housing duty.
You cannot refuse the property because you prefer not to move. If you fail to attend the appointment and to sign up for the property, we will treat this as a refusal of the offer."
"Before a local authority can make a decision on your case I have to be satisfied that any decision reached is balanced and that you have had an opportunity to comment on any evidence or interim conclusion that I or another officer may have reached. Based on your submissions received so far, there is a strong possibility that I will uphold the decision that the offer of Flat A, 7 Cambridge Drive, SE12 8AG was a suitable offer of alternate accommodation.
I am giving you the opportunity to provide representations and documentation in regard to the above raised issues. If I have not had a response from you by close of business on 15th August, 2011, I will make the decision based on the information available to me."
The Appellant states that she did not receive this letter and there is no finding to the contrary by the judge. It is clear (as will be seen immediately below), however, that the reviewing officer was working on the basis that such a letter had been sent by the Respondent.
"You did not submit areview
of the offer but you did make a complaint dated 15th June. This letter has been passed to the
review
team despite your insistence that it is not a
review
request as you have raised issues that can only be dealt within the remit of a section 202
review
.
Your complaint states the following:-
That the offer is invalid as it is an offer of temporary accommodation and not a permanent offer. Please be advised that due to the prescriptive nature of the recommendations it has been extremely difficult to locate a property that meets all of the criteria. Flat A, 7 Cambridge Drive was as you state an offer of temporary accommodation. However, you cannot refuse a property that meets all of the recommendations on your application simply due to the type of tenure. It is a valid offer of accommodation. Had you taken up the offer there was every possibility that it would have been offered to you as a permanent address shortly afterward due to it meeting your requirements via the temporary to permanent program.
I have asked you to provide any further submissions for the refusal via a Minded to (sic) letter dated 8th August 2011. This letter advised you that based on your submission provided thus far I was minded to make the decision that the offered address was suitable. I requested this information to be presented by close of business 15th August, 2011. To date you have made no further submissions.
As a consequence of this I am making the decision based on the information on file. Having taken all information available to me into consideration, I find that Flat A, 7 Cambridge Drive was a suitable offer of accommodation."
The letter stated finally that the Respondent's duty to provide accommodation had come to an end and eviction proceedings would follow. The Appellant was informed that appeal on a point of law lay to the county court within 21 days. The Appellant duly appealed to the court by Appellant's notice filed on 30 August 2011.
(C) The decision in the County Court
"26. It seems to me that to re-write or seek to suggest that the Local Authority should have re-written the relevant letters with an additional rider indicating to her in terms, not just that permanent accommodation would be looked at in the future, but it could be the same property that became that permanent accommodation under the transfer from temporary to permanent scheme is the council (sic) of perfection. It is to simply re-write with the benefit of hindsight a section of the letter because the situation is that, sadly, the Appellant now knows (and would have known I suspect shortly after she received thereview
letter) that there was no power for her to simply reject on the basis of tenure, which is what she clearly did [,] accommodation that was otherwise entirely suitable to her needs and requirements.
27. I am firmly of the view that for the courts to deem that letter and the consequences that flow from it unfair under the authorities to which I have been referred would be to require the courts to micromanage and indeed usurp the position of the Local Authority, who has a very difficult job to do, and to in effect put them in a position where almost any letter or correspondence would be susceptible to re-writing orreview
. That is not the system that we have. It is a
review
by the courts looking carefully at what is a serious decision for the sort of unfairness that strikes at that system and renders what has been decided unjust or unfair. That is not this case. All the information was available, both from her prior dealings and from the terminology of the letters she received for her to know perfectly well what she was rejecting. Indeed to be fair to the Appellant, when one reads the language (I do not criticise it in any way) of her letter, it is perfectly clear that this is a woman who has reached the end of her tether and is determined only to receive permanent housing, whatever is offered in the temporary field by the Respondents."
"I would have no hesitation in concluding that – although it was very much the appellant's wish (even, in her own mind, expectation) that she receive permanent accommodation – it could not have been a legitimate expectation in the circumstances of the history I have detailed and the way she was dissuaded in particular by the ruling of the adjudicator in 2009. It was, as one would expect, her very real hope she would receive permanent accommodation, but it could not begin to scale the heights of a legitimate expectation."
(D) The Appeal to this Court
"The judge was wrong hold (sic) that fairness was satisfied by Lewisham not correcting the appellant's genuine if mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s.193 of the Housing Act 1996."
"Original Ground
3. The Learned Judge was wrong to hold that fairness was satisfied by Lewisham not correcting the appellant's genuine but mistaken understanding of her entitlement to a final offer of accommodation until after she had refused an offer of temporary accommodation and Lewisham had discharged its duty to her under s193 Housing Act 1996.
Ground 2
4. The Learned Judge erred in law in holding that the Appellant did not have a legitimate expectation that she would be provided with permanent accommodation by the Respondent and or that this legitimate expectation made thereview
decision unlawful.
Ground 3
5. The Learned Judge erred in law in concluding that thereview
was conducted fairly. There was a breach of Regulation 8 of the Allocation of Housing and Homelessness (
Review
Procedures) Regulations 1999 SI 1999/71 which rendered the
review
process unfair and unlawful. The Learned Judge should have varied or quashed the
review
decision."
(E) The Arguments and Conclusions on them
Legitimate Expectation
"3.4 Offer Guarantees
Any council property you are offered must:
- have enough bedrooms for your permanent household (see Section 3.1)
- be ready to move into from the date of tenancy (see Section 3.7)
Where appropriate, the offer must take into account:
- any recommendations by the Council's Medical Advisor (see Section)
- any recommendations on disabilities by the Occupational Therapy Team(see Section 4.2)
If the local housing office accepts that any of these guarantees is not met, the offer will be withdrawn and another one made when a suitable property becomes available.
If you are being rehoused through the Housing Options Centre and you are made an offer within the one offer policy (see Section 3.3), this will take into account as far as possible, requests about the location and property type you would prefer to be offered, although no guarantees can be made."
The argument then is that after the Respondent had made its first offer of permanent accommodation, i.e. in December 2006, and its subsequent withdrawal, the Respondent's policy (paragraph 3.4) "guaranteed" the making of another offer, and it was contrary to the Appellant's legitimate expectation for it to make any offer or offers of temporary accommodation thereafter. Alternatively, if that is not correct, it was contrary to policy and thus contrary to legitimate expectation, to offer temporary accommodation in June 2011, after the long history of the case and the offers of unsuitable permanent accommodation in earlier years.
"….where it was alleged that a public authority had by practice or promise created a legitimate expectation that a person would be granted some substantive or procedural benefit the court should consider to what the authority had in fact committed itself, whether the authority had acted or proposed to act unlawfully in relation to that commitment and, if so, whether to take the substantive decision itself or to remit the matter for the authority to decide afresh according to law; that, in considering whether an authority had acted unlawfully in relation to a commitment which it had made, it had to be objectively determined whether its conduct had amounted to an abuse of power; that it was not as a matter of law necessary to show that the applicant had relied on the expectation to his detriment, although both reliance and detriment were relevant considerations in determining whether it would be unfair to allow the authority not to honour such an expectation; that it was an abuse of power for an authority to adopt a course of action at variance with a promise, which had given rise to a legitimate expectation that it would be honoured, without considering the fact that it was in breach of that promise;..."
Regulation 8
"45. The Appellant did not receive the "minded to" decision and, in light of the long history of correspondence with the Respondent it is quite clear that she would have made representations had she been given the opportunity to do so. In any event the "minded to" letter did not consider the question of legitimate expectation nor did it advise the Appellant of the probability that the accommodation would become permanent. It did not even advise the Appellant that she had the right to make oral or written representations or both.
46. The Appellant had been insisting for many years that she was entitled to "one offer only" of permanent accommodation. The letter of 14 June 2011 was in a standard form with an identical warning to that given to the Appellant in 2004 namely that it would be a considerable time before she obtained permanent housing. As such it was extremely provocative and, indeed, misleading given that thereview
officer acknowledged that the accommodation would probably have become permanent. The Appellant was deprived of the essential safeguards conferred by Regulation 8, and, for this additional reason the decision should be quashed."
"(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant-
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."
Fairness
"Had you taken up the offer [of the Flat] there was every possibility that it would have been offered to you as a permanent address shortly afterward due to it meeting your requirements via the temporary to permanent program."
It is argued that fairness required the Respondent to notify the Appellant of this possibility at the time that the offer of the Flat as temporary accommodation was made. Alternatively, it is submitted that the failure to do so was also a deficiency in the offer letter, triggering the provisions of regulation 8(2).
(F) Conclusions
Lord Justice Lloyd Jones:
Lord Justice Kitchin