Council wins appeal over when housing duty ended after claimant refused private rented sector offer

The Court of Appeal has ruled that a woman cannot take the London Borough of Waltham Forest to judicial review in a dispute over whether the council discharged its main housing duty towards her.

Lord Justice Newey said in his judgment the claimant/respondent had recourse through the council’s review system and in the county court without needing judicial review.

Waltham Forest had made the claimant a private rented sector offer in June 2020, which she refused as it was in Derby and she wished to continue living in or near Newham, where Waltham Forest had placed her and her two children in temporary accommodation.

The claimant maintained the offer letter was defective and claimed judicial review of the council’s refusal to accept that it continued to owe her the main housing duty.

The High Court agreed to this but the council then appealed.

In 2017, the council had told the claimant it owed her the main housing duty under section 193 of the 1996 Act but would not if she refused an offer in the private sector.

The accommodation in Derby was offered in June 2020, when the council said it had decided to bring the duty under s.193(2) to an end by offering an assured shorthold tenancy with a fixed term of 24 months.

Waltham Forest told the claimant: “Please note that this offer of suitable private sector accommodation will discharge our duty to you whether you accept or refuse the property. You will only receive this one of[f] offer of suitable accommodation. Under Section 193(2) of the Housing Act 1996 it will bring our housing duty to you to an end.” The letter explained her right to seek a review.

Newey LJ said: “it is to be observed that, while the 11 June letter sought to inform [the claimant] of the implications of section 195A(1) of the 1996 Act, it did not inform her of the implications of section 195A(2).”

She issued a claim for judicial review in September 2023 of the council’s decision to refuse to accept that its duty under section 193(2) of the 1996 Act continued.

The High Court then granted a declaration that the council continued to owe her a duty under section 193 of the 1996 Act.

Waltham Forest did not dispute that its letter of June 2020 did not comply with section 193(7AA) of the 1996 Act, but submitted that the claimant’s claim should still be dismissed.

It argued the claim had been brought out of time, that granting relief would offend the principle of finality and that the claimant had alternative remedies by way of statutory review and appeal, which she had not exercised.

Newey LJ said the argument in the appeal focused on whether it had been open to the claimant to request a review in 2020 of the deficiency in the offer letter. The council argued that the claimant had two opportunities to request such a review.

He said legislation did not say an applicant must be told that the authority’s duty has terminated, and as section 193(7) of the 1996 Act is now framed, there is 'automatic discharge’ where an offer of accommodation under Part 6 is refused.

There must similarly be ‘automatic discharge’ under section 193(7AA) where a private rented sector offer is refused or accepted provided that the applicant has been informed of the matters mentioned in section 193(7AB).

Newey LJ said the High Court had been mistaken in considering that refusal of a private rented sector offer would bring a local housing authority’s duty under section 193 of the 1996 Act to an end only if and when the authority so decided.

“The better view, I think, is the duty ceases automatically on refusal,” he said. “Even supposing, however, that that is wrong, [the claimant] will, as it seems to me, have been entitled to request a review under section 202(1)(b) of the 1996 Act when she received the offer letter of 11 June 2020.

“In my view, therefore, [the claimant] was entitled to request a review in respect of the offer of 11 June 2020 not only under section 202(1)(g) of the 1996 Act (as regards suitability) but also under section 202(1)(b).”

The judge said a decision that such a duty has ceased is reviewable “even if only confirmatory of a prior automatic discharge”.

Her ability to seek reviews meant the claimant “had a remedy other than judicial review available to her”.

Newey LJ explained: “In the present case, it was clearly Parliament’s intention in enacting section 202 of the 1996 Act that challenges to decisions such as are identified in section 202(1) should be pursued by way of review and, if necessary, appeal to the County Court, not through judicial review.

“It is also noteworthy that Parliament thought it appropriate to require a request for a review of a decision to be made within 21 days after its notification unless the local housing authority allowed a longer period.

“In my view, it is not appropriate to allow [the claimant] to claim judicial review…she had available to her, but failed to invoke, the procedure (viz. review and appeal) which was meant to apply in relation to decisions as to whether a duty under section 193 of the 1996 Act was owed.”

Newey LJ dismissed the claim for judicial review and Lord Justice Warby and Lord Justice Peter Jackson both agreed.

Mark Smulian