City council wins appeal over offer of accommodation with one bedroom to father of four

The Court of Appeal has allowed an appeal by Cambridge City Council over whether it was justified in offering the claimant/respondent accommodation with one bedroom despite him wanting a home large enough for his children to stay overnight when visiting.

Judges heard argument over whether a report by the Children and Family Court Advisory and Support Service (Cafcass) should have been considered and whether a review decision confirming the suitability of the property should stand.

The claimant formerly lived with his wife and their three daughters in Coton, near Cambridge, but in January 2022, he left and applied to the council as homeless.

Cambridge accepted a duty under section 188 of the Housing Act 1996 to secure interim accommodation in various hostels until he was offered tenancy of a one-bedroom flat.

A letter from the council stated it was “satisfied that the property is suitable and that it would be reasonable for you to accept it”.

It added: “I appreciate you may wish for more bedrooms to accommodate your children however following the Cambridge City Council Lettings Policy…I am satisfied that a one-bedroom property is suitable for your needs. This is because the police have confirmed that your children remain safe to reside at their mother's house …. In addition to this there are no concerns raised by social services for me to consider as part of this offer and its suitability.”

The claimant accepted the offer but also requested a review as he wanted an additional bedroom.

His solicitors told the council: “We submit that [the claimant’s] circumstances are exceptional as his children are heavily reliant on him for emotional support. We submit that this includes but is not limited to [the claimant] providing his children with safe space; warmth; and attention after everything they have been through after the separation.”

Enclosed with this was a report by Cafcass, and the reviewer emailed its author, to ask for assistance on certain points.

The author said the Family Court had not granted permission for the Cafcass report to be released to the council and “until there is consent from both parties/ the court for sharing the section 7 report, I am advised that technically you should disregard its content which I appreciate is not helpful”.

The reviewer then disregarded any submissions from the claimant specific to the Cafcass report, and concluded that the flat and its location were suitable.

This was based on 16 points including that “your children are adequately housed and supported financially, practically, and emotionally in the primary care of their mother … at the family home [in Coton], where they reside full time” and that the accommodation “does not preclude your children from visiting or staying overnight”.

The claimant appealed successfully to the County Court under section 204 of the 1996 Act on three grounds.

The judge there, His Honour Judge Moloney KC (sitting in retirement), held that the reviewer should have sent the claimant a ‘minded to’ letter as it was likely that, had that happened, the Family Court would have consented to the report's use by Cambridge.

He also said the offer made to the claimant had not complied with the requirements of section 193(7F) and (8) of the 1996 Act, which meant that a housing authority must first be satisfied that the applicant "is able to bring to an end his existing obligations in respect of other accommodation before being required to take up the part 6 offer".

Thirdly, the judge said that, in "shutting her eyes" to the Cafcass report, the reviewer had made a serious error of law, “at least without applying to the Family Court for leave to use it”.

Newey LJ said in his judgment that no disclosure order had been made about the Cafcass report and its provision to the reviewer by the claimant’s solicitors “was not in fact permissible. It must follow, I think, that the reviewer was not entitled to have regard to its contents.”

He noted the county court judge considered that the Cafcass report should have led the reviewer to send a 'minded to' letter.

“As I have said, the reviewer should not in fact have been sent the report and was not entitled to take its contents into account,” Newey LJ aid.

“However…[the claimant]…argued that the reviewer did not need to have regard to what was said in the report to conclude that there was a ‘deficiency’ in the decision to offer [the claimant] the flat.”

Having been told to disregard the Cafcass report, the reviewer’s assertions that she did not think that it revealed a ‘deficiency’ was “to be attributed to the fact that its contents fell to be disregarded rather than to any perception that information of which the original decision-maker had not been aware was irrelevant”, Newey LJ said.

He said the mere fact that a Cafcass report relating to children of an applicant had been prepared did not suggest that there was something lacking in the original decision "of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard".

Something further pointing to exceptional needs or circumstances would be needed before finding a deficiency.

Newey LJ said: “I do not see why the emergence of a Cafcass report, whose contents could not be taken into account and the recommendations in which might not be adopted by the court, should of itself be deemed sufficiently important to necessitate a 'minded to’ letter.”

He continued the county court had been “wrong to think that the reviewer fell into error in failing to send a 'minded to’ letter. In my view, she was entitled to conclude that no such letter was required”.

Since Cambridge owned both the hostel the claimant had lived in and the flat he was allocated it could ensure he was able to bring his obligations at the hostel to an end before moving, Newey LJ said, dismissing this point.

The County Court had considered that the reviewer had made a "serious error of law" in "shutting her eyes" to the Cafcass report.

“In the light, however, of section 12 of AJA 1960 and the Griffiths v Tickle decisions (which were not, I believe, before the Judge), it is clear that the reviewer was right not to take into account the contents of the Cafcass report,” Newey LJ said. “The fact that she did not do so cannot vitiate her decision.

[The claimant] had himself told the reviewer he had arrangements for a bunk bed in the bedroom for the children when he would sleep in the living room, he noted.

Lord Justice Warby and Lord Justice Underhill both agreed to allow the appeal.

Mark Smulian