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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Adesotu v Lewisham London Borough Council [2019] EWCA Civ 1405 (02 August 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/1405.html Cite as: [[2019] HLR 48, [2019] WLR 5637, [2019] WLR(D) 451, [2019] HLR 48, [2019] EWCA Civ 1405, [2019] 1 WLR 5637 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE LUBA QC
E40CL183
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McCOMBE
and
LORD JUSTICE BEAN
____________________
JOY ADESOTU |
Appellant |
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- and - |
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LEWISHAM LONDON BOROUGH COUNCIL |
Respondent |
____________________
Dean Underwood and Riccardo Calzavara (instructed by Lewisham LBC Legal Services) for the Respondent
Justin Bates (instructed by Francine Morris) for the Equality and Human Rights Commission, intervening by way of written submissions only.
Hearing date: 10 July 2019
____________________
Crown Copyright ©
Lord Justice Bean :
The facts
"9. The Appellant, Ms Adesotu, is a single parent of three young children. In 2017, she applied to the Respondent, Lewisham Council ('the council') for homelessness assistance. The council provided her with interim accommodation pending the outcome of her application.
10. On 11 May 2018, the council notified her of a decision that she was owed the main housing duty under the Housing Act 1996 Part 7 (Homelessness) albeit that it was inaccurately referred to by the council as the 'full' housing duty. The duty required the council to secure suitable accommodation for her occupation. The notification informed her that the interim accommodation that she had been occupying was now being provided in performance of the main housing duty.
11. On 22 May 2018, the council wrote her a letter headed "OFFER OF TEMPORARY ACCOMMODATION". It stated that it was "pleased to be able to provide you [with] temporary accommodation". The letter described the size and rent of the offered accommodation and stated that its provision was made in performance of the main housing duty.
12. The body of the letter did not indicate the address of the offered accommodation but the letter was addressed to Ms Adesotu at the address of "220 Algernon Road" where she was not living. The letter was delivered to her by hand, at what had been her interim accommodation, on Friday 25 May 2018.
13. It was later to transpire that the council was offering accommodation at 220 Algernon Road that it had itself leased from a private owner specifically for provision to homeless households as part of a Private Sector Leasing (PSL) arrangement.
14. The text of the letter set out that the council considered the offered accommodation suitable for the household and that its decision as to suitability might be subject to review by Ms Adesotu whether she accepted or refused the offer. It cautioned as to the consequences of a refusal of the offer and a subsequent unsuccessful review.
15. Nothing in the letter indicated how, or by when, the offer was to be accepted or refused.
16. Later in the day on 25 May 2018, an Email containing the following text passed between council officers:
"Above client was offered PSL today, she has been given a copy of the offer letter but she has not signed. She is saying she needs more time, she tried to kill herself last year etc etc. Please can you have a word?"
17. Prompted by his receipt of that Email, Mr Brian Frederick of the council spoke to Ms Adesotu by telephone later in the afternoon of 25 May 2018. She told him that she had refused the offer of Algernon Road because it was too far from her children's school and she was too depressed to move. Mr Frederick recorded that he:
"advised her that the council does not like moving people from place to place but it does sometimes become necessary as it has in her case so she needs to accept the property offered or I would have to close her case".
18. That evening, Mr Frederick sent an email to Ms Adesotu which stated that:
"You have been offered accommodation which you have confirmed that you do not wish to accept. You provided your reasons for refusal and confirmed receipt of the offer letter. Unfortunately, I do not agree that the reasons you gave for refusal justify withdrawing the property. As a result, if you do not confirm by midday of Tuesday next week, after the bank holiday, that you are going to accept the property, I will discharge the duty owed to you and cancel your homeless application".
19. That Email was sent at 18.45 on Friday 25 May 2018. May 26–27 was a weekend. May 28 was Bank Holiday Monday.
20. Ms Adesotu replied to Mr Frederick in a rather confusing Email, sent by her on the Saturday evening. By then, she had been to see 220 Algernon Road. In her Email she not only "accepted the offer of the property" but set out her detailed concerns about it. Her message indicated that she had been to see the property and "from what I saw I cannot move into the property". She concluded with: "Having outlined my major reasons of refusal, I am requesting a review" and referred to a written request for review that she had sent to the review team.
21. On Tuesday 29 May 2018, Mr Frederick sent a short Email in response which included "OK thank you. I will treat this as a refusal".
22. On Wednesday 30 May 2018, Mr Frederick telephoned Ms Adesotu to "clarify her position". He records that in his first call he:
"told her that unless she is going to sign the papers, take the keys and move in then it is a refusal, I require an answer, yes or no because she has had enough time. I told her that if she does not confirm with "yes" to all of that it will be a refusal and the property offered to someone else."
23. Ms Adesotu indicated that she could not give an immediate answer because she was breastfeeding her youngest child. Mr Frederick told her that he would call back two hours later and that if she did not take the phone call "it will be the end of the chances I have given her to accept".
24. His note of the second call reads:
"after talking all around this issue for a while I told her that she was either going to move in or not and I require an answer. She said the property is not safe for her children. She refused to confirm that she would move in. I told her that I concluded that her position is that of refusal".
25. By letter dated the same day (30 May 2018) Mr Frederick notified Ms Adesotu that, because she had refused an offer of suitable accommodation, the council's duty to accommodate her had come to an end. The letter stated:
"You later visited the address and despite being given several opportunities to confirm your acceptance of the property, you had failed to do so, over a week after the date of the offer letter. You were given a final opportunity to accept the property today but you refused to do so. You, today, claimed that the property was unsafe for your children".
26. In due course, the council received the written request for review that Ms Adesotu had already made by a letter dated 27 May 2018 about the suitability of the accommodation. That referred to: the front door opening onto a main road with no guard or safety measures to protect her children from danger; the distance to their schools; and the facts that she had recently given birth and was a "patient of depression".
27. The council decided that Ms Adesotu could remain in what had been the interim accommodation until the review concluded.
28. On 6 June 2018, the reviewing officer sent a letter setting out the decision on review that he was 'minded to' reach and invited representations. No representations were made.
29. On 25 June 2018, the reviewing officer sent a letter giving a decision on the review, namely that the accommodation had been suitable and that the decision "to discharge duty on your homeless application was the correct one". The letter set out the conclusions made by the reviewing officer and the reasons for them over 10 pages of typescript."
"For clarification I would like to point out that I have given careful and critical scrutiny on your application, in making this decision, to the Equality Act 2010. … I have considered all the protected characteristics with respect to the said legislation relating to your case. That is, I have considered that you have recently given birth and have a history of mental health issues (including PTSD), and are currently under the treatment of the Perinatal Mental Health Team at University Lewisham Hospital, however I am currently minded that you do not meet the definition of disability under that Act, but you are a 36 year old woman with four year old and ten month old sons and an eight month old daughter."
The appeal to the County Court
"Ground 1 . The Respondent breached section 19 of the Equality Act 2010 by applying provisions, criteria or practices that are discriminatory in relation to the Appellant's disability, and which cannot be justified. The policies, criteria or practices are:
a. Operating a short and inflexible time limit during which an applicant may accept or refuse an offer of accommodation;
b. Not permitting an applicant time in which to take professional advice in respect of an offer of accommodation;
c. Treating an equivocal acceptance of the accommodation as a refusal of the accommodation; and/or
d. Treating a failure to immediately occupy the accommodation as a refusal of the accommodation.
Ground 2 . The Respondent breached section 15 of the Equality Act 2010 by treating the Appellant unfavourably (deciding that the section 193 duty was discharged) because of something arising in consequence of her disability (her delayed and equivocal decision as to whether to accept the accommodation), and the unfavourable treatment was not a proportionate means of achieving a legitimate aim.
Ground 3 . The Respondent breached section 149 of the Equality Act 2010 in that it:
a. Failed to focus very sharply on the Appellant's disability, the extent of the disability and the impact of the disability upon her (Hotak & Ors v Southwark London Borough Council & Anor [2016] AC 811);
b. Failed to take into account the Appellant's disability in deciding whether the accommodation was suitable; and
c. Failed to accommodate the Appellant's disability by allowing her time to reach a decision as to whether to accept the offer and/or by allowing her time to take legal advice (in breach of sub-sections 149(3)(a)-(b), 149(4) and 149(6)).
Ground 4 . The Respondent misdirected itself in law in respect of whether there had been a 'refusal' in that:
a. The correct approach is whether there is 'sufficient acceptance for it not to be possible to treat an applicant's communication as a refusal', and not whether the applicant fails to actually occupy the accommodation offered (R (Muslu) v London Borough of Haringey (unrep.) CO/3028/2000);
b. The Appellant explicitly accepted the offer by email on 26 May 2018; and
c. The review decision failed to reconsider whether the Appellant had, in fact, rejected the offer (Nzamy v Brent London Borough Council [2011] HLR 20, CA).
Ground 5 . The Respondent misdirected itself in law in that the review decision considered whether the accommodation was suitable as temporary accommodation. Instead, because the Respondent owed the Appellant a duty under section 193(2) of the Housing Act 1996, the Respondent was bound to assess suitability on the basis that it was discharging the open-ended permanent accommodation duty.
Ground 6 . The Respondent misdirected itself in law in that it failed to judge suitability by reference to the condition of the property at the time of the offer, but instead took into account proposed adaptations that were not certain, binding or enforceable (child barriers, child-proof latches and/or extra locks or latches on the windows) (Boreh v Ealing Borough Council [2009] HLR 22)."
The Equality Act point
"Although the County Court's jurisdiction [under s 204] is appellate it is in substance the same as that of the High Court in judicial review: Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306. Thus the court may not only quash the authority's decision under s 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety, or unfairness or bias or irrationality or bad faith, but also if there is no evidence to support factual findings made or they are plainly untenable; or … if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact."
The Housing Act point
"……..for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review cases, the court time and legal costs involved in such cases will spiral."
"However, particularly given the nature of hearings under s 204 of the 1996 Act, the wide terms of s 204(3), and the good sense and experience of County Court judges, nothing in these observations is intended to cut down the flexible and practical approach to s 204 appeals adopted by the County Court."
"71. Sixthly, the decisions of this court in 2011, in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, extended the powers of the County Court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 or 202 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authority's decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. Alternatively, as Moses LJ stated in this case ([2013] EWCA Civ 804) at para 89, the occupier of the temporary accommodation may raise the issue of proportionality of such an eviction by way of judicial review in the Administrative Court, which similarly could resolve relevant factual disputes. An occupier might have to resort to judicial review if an authority were not willing to continue the provision of interim accommodation pending a review."
Did the issues "arise from the decision"?
"… the Act has provided for the applicant to challenge the decision and have it fully reconsidered, with the opportunity to ensure that the full facts are taken into account. That seems to me to exclude as illegitimate a challenge on the grounds such as [that] the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution."
He added at paragraph 28 that the review is "a continuation or a replacement for the initial decision-making process."
"Accordingly, even if the local authority failed in its duty to make proper enquiries on the issues relevant to the suitability of the accommodation before making an offer in my judgment the remedy for a disappointed applicant is to exercise the right of review. The applicant thereby has a second chance to have the matter properly considered with the fullest opportunity for representations to be made and a fresh duty on the local authority to make the proper enquiries. Only if the result of that process is so flawed as to be wrong in law is there any further recourse by way of appeal [under] s 204."
The Respondent's Notice
"In the instant case, it was not suggested at any point prior to this reviewing officer's decision, that there had been any public law irregularity or other unlawfulness in the council's handling of this homelessness application. Accordingly I do not accept that grounds 1, 2 and 3(c) take points "arising from" the reviewing officer's decision and I hold that this court does not have jurisdiction to entertain them."
The antecedent policy point
"In the event, and much influenced by the dictum in Panayiotou, I am satisfied that a reviewing officer is entitled (particularly in the absence of any contrary point having been expressly raised to treat any policy or practice of the council applied to the applicant by his/her own decision as lawful. As in all public law cases, there must be a presumption that a public authority behaves and has behaved lawfully (the presumption of regularity)."
Conclusion
McCombe LJ:
Lewison LJ: