For better or for worse

The Court of Appeal has just handed down an important ruling on the scope of statutory homeless reviews. Kelvin Rutledge QC and Sian Davies analyse the judgment.

Where a local housing authority considering a homelessness application under Part 7 of the Housing Act 1996 has found an applicant to be owed some form of duty, and there is a request for a review of that decision, and between the date of the original decision and review the applicant’s circumstances improve, the local authority is not bound by the previous acceptance of duty but, depending on the facts, is at liberty to issue a fresh decision that no duty is owed.

The Court of Appeal so held, and also determined another important operational question concerning the interplay between the concepts of “reasonable to continue to occupy” accommodation and “suitability”, in Temur v London Borough of Hackney [2014] EWCA Civ 877 (judgment handed down 26th June 2014)

Ms Temur applied to Hackney for Part 7 assistance and was found to be homeless but not in priority need. A s.184 decision was issued to that effect, and she requested a review. Prior to the review, two things happened. Her daughter came to live with her, thereby conferring priority need. Ms Temur also obtained accommodation (although she contended that the accommodation was not reasonable to continue to occupy).

Hackney issued a letter pursuant to reg.8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 stating that it was “minded to” find that Ms Temur was no longer homeless. Consequently, it was irrelevant that she had since obtained a priority need. Arguments were raised in response about the space and arrangement of the accommodation. The review decision concluded that no duty was owed because Ms Temur was not homeless. Her s.204 appeal to the County Court was dismissed. She appealed to the Court of Appeal.

Three grounds of appeal were argued before the Court of Appeal.

The first was that a review officer has no power to substitute an adverse decision on different grounds. It was Ms Temur’s case that she was entitled to retain the benefit of the decision in her favour on homelessness irrespective of her changed circumstances prior to review. That argument was rejected [Jackson LJ at 33–35 and Lewison LJ at 87]. The statutory wording is in the present tense, and requires the authority to be satisfied that the applicant “is” homeless. A review is a reconsideration of what, if any, duty is owed under s.190-193 and 195-196. Accordingly the authority must consider whether it is so satisfied at the time of the review. Everything is at large.

The second ground of appeal sought to elide the concepts of “reasonable to continue to occupy” in s.175(3) and “suitable” in sections 206 and 210 by way of an argument that a local authority, in assessing whether accommodation was reasonable to continue to occupy, was obliged to consider obtaining an assessment under Part 1 of the Housing Act 2004 (an HHSRS assessment). That argument was also rejected, on the basis that “reasonable to continue to occupy” is the “stage 1” exercise, and “suitability” becomes relevant only at “stage 2” when accommodation is being made available. The two stages were to be determined by different sets of rules, which was consistent with both the legislative history of the Housing Act 1996 and the Code of Guidance [49, 53-54].

Ground 3 concerned whether the review officer had complied with the obligation to look to the future in assessing the reasonableness of continued occupation. The Court concluded he had.

Hackney’s decision was accordingly upheld and the appeal dismissed.

Kelvin Rutledge QC and Sian Davies are barristers at Cornerstone Barristers. They appeared for Hackney in this case.