Homeless review officer can substitute less favourable decision: Court of Appeal

A local authority’s review officer was entitled to substitute a less favourable decision than the original decision in relation to a homeless applicant because circumstances had changed, the Court of Appeal has ruled.

In Temur v London Borough of Hackney [2014] EWCA Civ 877, the appellant applied for accommodation as a homeless person under Part VII of the Housing Act 1996.

Hackney Council decided that she was homeless and eligible for assistance, but not in priority need.

The appellant applied for a review of that decision. She then obtained a shorthold tenancy of a small property which she occupied with her young daughter.

The local authority’s review officer decided that she was not homeless. The appellant’s appeal to the county court was unsuccessful, so she took her case to the Court of Appeal.

She advanced three grounds:

• The reviewing officer did not have power to substitute an adverse decision on different grounds, namely that the appellant was not homeless instead of a decision that the appellant was not in priority need.
• The reviewing officer failed to consider whether the property taken under the shorthold tenancy (Room 4) was a health and safety hazard when assessed in accordance with Part I of the Housing Act 2004.
• The reviewing officer failed to look to the future when considering whether it was reasonable for the appellant and her daughter to continue to occupy Room 4 for the purposes of section 175 (3) of the 1996 Act.

Rejecting the appeal, Lord Justice Jackson said amongst other things that there was nothing in the wording of sections 202 or 203 of the 1996 Act which provides that the new decision must be more favourable to the applicant and cannot be less favourable.

The judge said: “In my view the review officer was entitled to substitute a less favourable decision than the original decision, because the circumstances had changed.

“He was not required to carry out a hazard assessment under the Housing Act 2004. He properly had regard to the future when carrying out his assessment, as required by section 175 (3) of the 1996 Act and the House of Lords' decision in Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506. Accordingly, I would dismiss this appeal.”

Agreeing with Jackson LJ, Lord Justice Lewison gave additional reasons for rejecting the appeal. The judge said social housing was a valuable resource.

He added: “If, after the original decision, but before the review, the applicant ceases to be homeless, it would be extraordinary if the authority still had a duty which, in terms, is confined to those who are homeless or threatened with homelessness.”

It was thought that, had the case gone against Hackney, the resource implications for local authorities would have been potentially significant.