CASE BRIEFING:

Giving reasons to homeless applicants

Akhtar -v- Birmingham CC

[2011] EWCA Civ 383 (Kay V-P, Rimer & Etherton LJJ)

Background

Birmingham accepted that the Appellant was homeless, eligible for assistance, in priority need and  not  intentionally  homeless  so  that  they  owed  a  duty  to  secure  that  accommodation becomes available for their occupation – s.193(1) and (2) of the Housing Act 1996 (“the Act”). The duty continues until it ceases by virtue of any of the exhaustive list of provisions in the rest of s.193, including where the applicant is are refuses a final offer of accommodation under Part VI of the Act – s.193(7).

The  local  housing  authority  may  not  make  such  an  offer  unless  they  are  satisfied  that  the accommodation is suitable and that it is reasonable to accept the offer – s.193(7F) of the Act. There must be a proper inquiry into suitability before a determination is made that particular accommodation is suitable and the question of suitability must be addressed at the time when the accommodation is provided – R (Best) v Oxford CC [2009] EWHC 608 (Admin).

The Act imposes a duty on a local housing authority to provide reasons for decisions under ss184(3),  203(4)(a) and 203(4)(b) of the Act but not as to why an authority regards offered accommodation as suitable or reasonable to accept in accordance with s.193(7F).

The governing principle as to when the common law will impose a requirement to give reasons was set out by Lord Bridge in Lloyd -v- McMahon [1987] AC 325 at 702-703, quoted by Lord Donaldson MR in R -v- Civil Service Appeal Board ex p Cunningham [1992] ICR 816 at 826E-G:

“the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase  which  better  expresses the  underlying  concept,  what  the  requirements  of fairness  demand  when  any  body,  domestic,  administrative  or  judicial,  has  to  make  a decision  which  will  affect  the  rights  of  individuals  depends  on  the  character  of  the decision-making body,  the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

Facts
Birmingham  accepted  a  duty  to  secure  suitable  accommodation  for  the  Appellant  and  her  7 children.  They  made  five  offers,  the  first  four  of  which  they  accepted  on  review  were  not suitable.  The  last  of  those  first  four  offers was in the  Kingstanding  area  of  Birmingham. The Appellant had objected to the location and assumed that that was at least part of the reason why her review was successful. In fact, Birmingham had decided that the offer was too small for her large family but they did not tell her that at that time. When the fifth offer was also in Kingstanding, the Appellant thought she could refuse it for the same reason. It was only after the offer was no longer open that Birmingham informed her of the  true  reason  why  they  had  upheld  the  previous  review.  By  that  time,  it  was  too  late  to correct her mistake. She argued this was unfair and Birmingham should have given reasons:-

a. In the letter upholding the review on the fourth offer. The true reasons for upholding the review had been recorded in a very brief file note which could easily have been put in the letter.

b. In the letter making the fifth offer which also stated that Birmingham regarded the offer as suitable and reasonable to accept. Birmingham had a duty to assess suitability at this point and so could have put their conclusions from that assessment in their letter. HHJ Worster held in the County Court that Birmingham had actually failed to comply with this duty and so had not carried out the relevant assessment.

The county court appeal was rejected and the Appellant appealed to the Court of Appeal.

Held
The Court of Appeal rejected the appeal. Etherton LJ gave the sole judgement:-

1. Counsel for the Appellant made five propositions that counsel for the Respondent (and,
by implication, the court) accepted [26]:-

a. there is no general duty to give reasons for administrative decisions;
b. in  an appropriate  case,  a  duty  to  give reasons will  be implied at  common  law where necessary to ensure fairness;
c. the categories of case in which the common law will imply such a duty are not closed or fixed;
d. there is no general principle other than fairness to determine whether reasons should be given; and
e. it is necessary to look at the features of each case to see whether there is a duty or not.

2. This  appeal  was  a  second  appeal.   It  raised  issues  of  sufficiently  wide  significance  to
warrant permission to appeal pursuant to CPR 52.13. [38]

3. The only issue on the appeal was whether the facts of the present case were such that the  omission  of  reasons  from  the  two  relevant  letters  of  was  so  unfair  as  to  be  in breach of the Respondent’s duty at common law. The Court of Appeal agreed with the County Court judge, substantially for the reasons he gave, that the facts of the present case were incapable of giving rise to such a duty. [39 & 40]

4. A  favourable  review  decision  which  fails  to  address  adequately  or  at  all  one  of  the grounds submitted for the review is not capable of appeal to the county court under s.204 of the Act because:

a. the review  officer  is not obliged to deal  with every objection to the property [42],
b. there is no authority on the subject [43],
c. it is trite that an appeal is against an adverse order [44],
d. s.203(4)(b) of the Act (duty to give reasons when confirming a previous decision to refer an applicant to another authority) refers to the resolution of a review against the applicant, not to the confirmation of a decision which plays no part in the resolution of the review in favour of the applicant [45].

5. It would serve no purpose to require every offer letter to give reasons explaining why the offered  property  is considered to  be  suitable  and reasonable for the applicant to accept. [46]

6. The particular features of the present case did not require a specific explanation as to why the offered property was considered suitable. The Appellant's assumption that she had  been  successful  in  all  of  her  objections  to  the  previous  property  was  not  a reasonable one. [47]

7. Any  unfairness  to  the  Appellant  was  avoided  by  the  prominent  warnings  in  various letters of the consequences of refusing a final offer and by notification of her ability to accept the offer and still challenge it on review. [48]

Analysis

This decision does not entirely close the door on the argument that a local housing authority is obliged to give reasons for homelessness decisions where there is no specific statutory duty to do so but it comes very close. It would take an exceptional set of unfair circumstances to be able to imply a duty to give reasons.

One of the arguments in favour of giving reasons in an offer letter was that this would be the only  mechanism  for  enforcing  the  local  housing  authority's  duty  to  make  an  assessment  of suitability at the time of making the offer. The Court of Appeal did not address this point. This  case  confirms  the  point  already  known  to  experienced  homelessness  practitioners  that applicants should be advised, if  they are considering rejecting an offer of accommodation, to accept the offer and challenge its suitability later.