Logo

Housing case law update: November 2021

Michael Owen, Katrina Robinson and Emily Howe round up the latest housing law judgments and Ombudsman reports of interest to housing associations and local authorities.

Hajjaj v City of Westminster [2021] EWCA Civ 1688

Court of Appeal, 12 November 2021

A decision by the Court of Appeal has highlighted the need for local housing authorities to establish “suitability” when making private rented sector offers to homeless applicants.

Article continues below...


In a joined case, the two appellants (“Mr Hajjaj” and “Ms Akhter”), who were both entitled to local authority homelessness assistance pursuant to the Housing Act 1996, had received a private rented sector offer (PRSO) from the City of Westminster and London Borough of Waltham Forest respectively, which they deemed unsuitable under Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012. Mr Hajjaj was a carer and considered the property on offer was too far away from his family and local amenities, and Ms Akhtar argued that there were disrepair issues which would impact on her daughter's asthma. Their appeals were dismissed by the County Court.

On appeal, the Court of Appeal dismissed Ms Akhter’s appeal but allowed Mr Hajjaj’s appeal, holding that section 193(7F) of the Housing Act 1996 states that a local housing authority shall not approve a PRSO unless it is satisfied as to its suitability and that none of the bars to suitability in Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 apply. The Court said that suitability is a “multi-faceted concept” that includes size, location, accessibility (if the applicant is elderly or disabled) and physical condition. It was not for a housing applicant to “to raise a red flag” over its suitability. The PRSO must not be made unless the local housing authority is satisfied that the accommodation is suitable. This could include “satisfactory hearsay evidence” such as the inspection report of the accommodation offered to Ms Akhter, which found that, save for some minor snagging issues, it was fit for occupation. The Court found that, in Mr Hajjaj’s case, the City of Westminster had no evidence that the property had been inspected and had simply assumed that, as the landlord was well established with a good reputation, the property was suitable. This contravened Article 3 and the statutory Homelessness Code of Guidance.

This decision is a reminder to local housing authorities that they must consider suitability when making PRSOs and that this should, as the Court of Appeal said, be satisfied on the basis of “evidence rather than assumptions”. If insufficient evidence is obtained, homeless applicants may be able to challenge the suitability of private rented sector accommodation offered.

A copy of the judgment is here.

In BL, R (On the Application Of) v London Borough of Islington [2021] EWHC 3044 (Admin)

High Court, 15 November 2021

The High Court has found that a claimant had capacity to bring a claim for judicial review against a local authority as a litigant in person despite a medical report to the contrary.

The Claimant (“BL”) had been diagnosed with Autistic Spectrum Disorder, Emotionally Unstable Personality Disorder, anxiety and depression. She brought a claim for judicial review of the London Borough of Islington’s decision not to award her 'medical points' under its housing allocation scheme. The application related to BL’s capacity to conduct the claim.

The High Court, in allowing the appeal, held that BL did have capacity to conduct her claim for judicial review. Although her claim had previously been stayed until she had provided evidence that she had the relevant capacity, that order had been based on a County Court's decision and a GP’s report that both concluded that she lacked the necessary capacity to understand the purpose or process of the legal action, why there is a court hearing, what is required of her in Court and what the role of the court members are. Any difficulties which may have arisen from BL’s disability could be overcome by making appropriate adjustments to assist her understanding of the proceedings.

A copy of the judgment is here.

Bedford v Paragon Asra Housing Ltd [2021] UKUT 266 (LC)

Upper Tribunal (Lands Chamber), 28 October 2021

The Upper Tribunal (Lands Chamber) has dismissed an appeal against a refusal to strike out a housing association’s claim that a tenant of a shared ownership lease had breached a covenant in the lease by subletting the property.

A residential social housing tenant (“Mr Bedford”) had acquired a long shared ownership lease in November 2009 and Paragon Asra Housing (“Paragon”) had acquired the freehold interest in 2017. In 2010, Mr Bedford decided to move temporarily to the United States and sought Paragon’s permission to sublet the property for a year while he did so. He gave a specific assurance that he would resume occupation of the property at the end of 2011 and, on that basis, permission was granted to him by Paragon. However, Mr Bedford did not return to live at the property at the end of 2011 and continued to sublet it, even after Paragon issued proceedings in July 2020. Paragon alleged that Mr Bedford was in breach of a covenant in the lease prohibiting subletting and sought to forfeit the lease. Despite being aware of the breach, Paragon did not decide to forfeit Mr Bedford’s lease until May 2020 and it continued to collect rent from him until May 2020. In response to the claim, Mr Bedford filed an application to strike out the claim, arguing that Paragon had waived its right to forfeit the lease, as it had – allegedly accepted rent after discovering the subletting. The First-Tier Tribunal dismissed the application to strike out and held that Mr Bedford had continued to sublet the property without permission and breached the covenant in the lease. Mr Bedford appealed.

The Upper Tribunal, in dismissing the appeal, held that it was unclear whether Paragon had actually waived its right of forfeiture, as it was difficult to ascertain whether Paragon was aware that Mr Bedford was continuing to sublet the property after the initial period that had been agreed. Paragon was granted the right to commence forfeiture proceedings.

Landlords should note that if Paragon had not granted consent to sublet in the first place, the issue in question and subsequent proceedings would not have risen in the first place.

A copy of the judgment is here.

R. (on the application of Bereket) v Waltham Forest LBC [2021] 11 WLUK 52

High Court, 4 November 2021

The High Court has held that when requesting a review of a housing allocation decision, the request must explicitly set out the request rather than, as in this particular case, simply reiterate why a property on offer is unsuitable.

The Claimant (“Ms Bereket”) applied to the London Borough of Waltham Forest for homelessness assistance. The London Borough of Waltham Forest accepted that it owed a homelessness duty to her and her child under Part 7 of the Housing Act 1996. Ms Bereket was offered temporary accommodation in Luton and explained her options if she accepted or refused the offer. She rejected the accommodation, arguing that it was unsuitable on the basis that her family and friends were all based in London. The local authority wrote to her, providing a detailed explanation as to why it was maintaining its position that the offer was suitable and reasonable. Despite Ms Bereket’s protestations, the London Borough of Waltham Forest stood by its decision and set a deadline for her to accept the accommodation. When she refused it again, the London Borough of Waltham Forest wrote to her to inform her that it had discharged its statutory duty to her and that any request for a review of the decision had to be made within 21 days. Ms Bereket was then given a specific email address for making review requests. She sent an email to that address but it did not refer to any review request; instead it simply set out her background and why she needed to stay in London for family reasons. The London Borough of Waltham Forest decided that this was not a request for a review within the statutory time limit. Ms Bereket applied for judicial review of its decision.

The High Court, in dismissing the application, held that Ms Bereket had not requested a review of London Borough of Waltham Forest's decision that it had discharged its statutory duties owed to her by offering her temporary suitable accommodation. Her purported request for review had been made by email and, although it had been sent to an email address that was specifically for review requests, it contained only a reiteration of her reasons for refusing the accommodation, rather than an actual request for a review of a decision.

A copy of the judgment is not currently available.

Michael Owen is head of housing management and partner, Katrina Robinson is an associate and Emily Howe is a solicitor at Capsticks.

(c) HB Editorial Services Ltd 2009-2020