Accommodation offers and suitability

The Court of Appeal has recently concluded that a county court judge had failed to apply the guidance in Pieretti v Enfield LBC. Iain Colville and Stephanie Smith explain why.

Summary

The Court of Appeal has held that, in an appeal under s.204, Housing Act 1996, against a decision that an offer of accommodation was suitable for the applicant and her children, the county court had failed to apply the guidance given in Pieretti v Enfield LBC [2010] EWCA Civ 1104; [2011] HLR 3. The judge had applied his own judgment to the question whether there was a real possibility of the applicant’s son having a mental disability (holding that there was), rather than asking whether the authority’s reviewing officer had been entitled to conclude by the end of his investigation that there was no real possibility of either child having a mental disability.

Background

In March 2014, Ms Wilson, who had two young sons (Keanu and Romareo) applied to the authority as homeless. In her homelessness application form, she stated that no-one in her household had a physical disability or mental illness.

Pending their inquiries into her application, the authority provided her with accommodation in a flat on the 11th floor of a high-rise block (Century Tower). No challenge was brought against the suitability of that accommodation. On 19 June 2014, the authority notified Ms Wilson that they owed her the full housing duty under s.193(2), Housing Act 1996. As a result of Ms Wilson placing unrealistic bids via Choice Based Letting, on 1 September 2014, the authority made a direct and final offer under Pt 6 of a flat on the 8th floor of another block (Thornton House).

Ms Wilson refused this offer and on 15 September 2015, the authority informed her that they had decided that their duty under s.193 had come to an end and informed her of her right to request a review.

Ms Wilson sought a review under s.202 stating, inter alia, that her sons had a fear of heights which meant: (i) she had to close the curtains all the time: and, (ii) living in Century Tower was mentally disturbing her children and having an effect on them at school. No professional or medical report or doctor’s note was provided to support these claims.

The reviewing officer informed Ms Wilson of the procedure on review and invited further representations. Ms Wilson did not respond to this request but a Ms Cowley, an employee of the authority, telephoned Ms Wilson to elicit further information. She was told that: (i) Ms Wilson’s children were afraid of living in the Century Tower and did not like the height; (ii) Romareo had a problem with heights which had become apparent when he went on a school trip and there was a tower which he would not ascend; and, (iii) she had asked during her homelessness interview not to be given a high-rise flat. This information was unsupported by medical evidence.

On 29 October 2014, the reviewing officer sent a “minded to find” letter pursuant to reg.8, Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) setting out a lengthy consideration of the case and concluding that the offer of the flat in Thornton House had been suitable. He stated he had considered the public sector equality duty in s.149, Equality Act 2010, but that he did not consider that any member of Ms Wilson’s household had a disability which would require further steps to be taken. The letter invited further representations but none were made.

On 7 November 2014, the authority notified Ms Wilson of the decision on review which was in the same terms as the minded to find letter. Ms Wilson appealed this decision under s.204 on the grounds that the authority had failed to make necessary inquiries to determine whether Romareo had a disability for the purposes of the 2010 Act and that the conclusion that he was not disabled was irrational. A medical report was produced prior to the appeal hearing which concluded that Romareo was on the autistic spectrum and had a disability.

Judgment below

The circuit judge allowed Ms Wilson’s appeal, relying on Pieretti v Enfield LBC [2010] EWCA Civ 1104; [2011] HLR 3 at [35], and finding that there was a real as opposed to a fanciful possibility of there being a mental disability which had required the authority to make further inquiries which they had failed to do.

Judgment on appeal

In Birmingham City Council v Wilson [2016] EWCA Civ 1137, Court of Appeal, November 17, 2016 (Black, Beatson and Sales LJJ) the Court of Appeal allowed the authority’s appeal. Giving the lead judgment, Sales LJ held as follows:

1. Whether there is a real possibility that member of an applicant’s family is disabled is a matter for the authority to decide on the evidence before them, subject to challenge on Wednesbury grounds.
2. On the facts, the authority had rationally concluded that Romareo was not disabled and there was no obligation to investigate the matter further pursuant to s.149.

Iain Colville and Stephanie Smith of Arden Chambers appeared for the appellant authority. Iain can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it. email, while Stephanie Smith can be reached on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..