Court of Appeal hands down ruling on matters that can be raised on appeal of review decision dealing with suitability of accommodation

The Court of Appeal has dismissed an appeal by a resident over what could be raised in a review request to London Borough of Haringey after she had rejected a property offer as unsuitable.

Michael Mullin, of Five Paper Chambers, who acted for Haringey, said the case was “likely to be of significant assistance to local housing authorities as it limits the matters that can be properly raised on an appeal of a review decision dealing with suitability”.

Mr Mullin said the judgment by Lord Justice Stuart-Smith, who heard the case with Lady Justice Nicola Davies and Mr Justice Cobb, also made clear that s.202 of the Housing Act 1996 creates a series of defined gateways and that reviewing officers cannot be criticised for failing to review or make a decision where there has not been a request that falls within one.

The appellant had received a final accommodation offer from Haringey, which she refused on grounds of unsuitability and requested a review under section 202(1)(h) of the Act, concerning the issue of suitability.

Haringey’s review decision found that the accommodation offered was suitable and said its duty under section 189B(2) of the Act therefore ended and the section 193 main duty no longer applied.

The appellant brought a statutory appeal to the County Court under section 204(1)(a) of the Act arguing that neither of Haringey’s duties had ended because it was Wednesbury unreasonable to deem the property suitable for her and two disabled sons.

She also argued Haringey erred in concluding that the end of the relief duty meant that no further duty was owed under the Act; and by failing to adopt the requisite structured approach to disability and the physical and medical needs of her disabled children.

HHJ Saggerson dismissed the appeal and two grounds were then advanced before the Court of Appeal.

These were that Haringey erred in concluding that as a result of section 193A(2) and (3) of the Act, no further duty was owed to the appellant under Part 7 following its ending of the relief duty; and that HHJ Saggerson erred in rejecting the argument that the local authority must take into account events surrounding and subsequent to the decision, in considering what other duties may be owed under Part 7.

Stuart-Smith LJ said that after a lengthy exchange of correspondence with Haringey over the property and her review applications the appellant submitted “that no decision within the meaning of section 184 was made as to whether or not the respondent owed any further duties to the appellant after and in consequence of her refusal of the final accommodation offer”.

The judge said: “That seems to me to be a difficult interpretation to sustain, since the terms of the respondent’s letters were clear and peremptory: no further offers would be forthcoming and, in context, it was clear that (rightly or wrongly) that was the respondent’s decision as a result of the appellant’s refusal of the offer and the operation of section 193A.”

Even if the appellant’s interpretation had been correct, she should then have sought judicial review and not used the provisions of sections 202 and 204 of the Act.

If she was dissatisfied with Haringey's decision on the scope of its duty, her remedy was to request a review pursuant to section 202(1)(a) or (b) as appropriate.

“The only request for a review was expressly made in relation to suitability under section 202(1)(h),” Stuart-Smith LJ said.

He added: “It is not suggested that there could not be concurrent reviews in relation to the decision on suitability and the decision on eligibility or scope of duty: nor, in the light of Ravichandran, could there be.”

But no review was ever requested of the decision on eligibility or scope of duty, only on suitability.

The judge said this was not a blanket request to Haringey to review every aspect of its relationship with the appellant and nor did a review of suitability intrinsically require consideration of the council’s duty to her.

“It is therefore not possible to expand the ambit of the appellant’s request for a review to cover anything other than suitability,”the judge said.

He said HHJ Saggerson had been right to decide that Haringey’s reviewing officer was not required “to embark on a comprehensive overhaul or rethink of the entire process in respect of matters that he has not been asked to review or reconsider”.

Stuart-Smith LJ concluded: “Accordingly, whether she is right or wrong in her submission that there had been no decision pursuant to section 184 about any residual duty once the relief duty had ended and the main housing duty no longer applied, the statutory route pursuant to sections 202 and 204 of the Act does not provide a remedy for the appellant on the facts of this case.” He rejected her second ground for the same reasons.

Mr Justice Cobb and Lady Justice Nicola Davies both agreed.

Mark Smulian