Court of Appeal judge gives permission for judgment to be cited when seeking review of suitability of housing out of time

A Court of Appeal judge has issued his reasons for refusing an application for permission to appeal in a judicial review challenge over a council’s refusal to conduct a review of the suitability of the accommodation provided to the applicant.

Jeremy Johnson QC, sitting as a Deputy Judge of the High Court, had dismissed her claim in February this year in B, R (on the application of) v London Borough of Redbridge [2019] EWHC 250 (Admin).

The applicant had sought judicial review of Redbridge Council's refusal to conduct a review under section 202 of the Housing Act 1996.

She claimed that the accommodation was unsuitable because it was unaffordable because the actual bill which she faced for electricity supplied to the accommodation was materially higher than the estimate of £20 a week on the basis of which the property was originally allocated to her.

Judge Johnson held that the applicant was not entitled to what was in effect a second review of the decision on suitability because she had not made the application within the 21-day period referred to in section 202(3).

A previous request for a review, made on 22 December 2017 as a result of the impact of the "benefit cap", had concluded that the accommodation was suitable, albeit "extremely borderline in terms of affordability".

In B v London Borough of Redbridge [2019] EWCA Civ 1592 Lord Justice Males said that the request was made out of time “appears to have been the judge's own point taken at the hearing, but it appears that counsel were prepared to deal with it and, in any event, there appears to be no answer to it that I can see”.

The wording of the statute was clear, the Court of Appeal judge said. “A request for review must be made within 21 days unless the authority allows a longer period. [Counsel] for the applicant suggests that a person has an absolute right to request a review even after the 21 day period, that there needs to be an appeal so that that point can be considered, and that the alternative remedies to which the judge referred are not sufficient remedies.”

Judge Johnson had held that, notwithstanding the time limit in the statute, there were other means by which affordability and hence suitability could be raised by a person in the applicant's position in the event of a change of financial circumstances after the expiry of the 21 day period.

The Deputy High Court judge had said that a local authority could be asked to consider a request out of time. “In deciding whether to consider a request out of time the local authority must act rationally. If it does not do so it can be challenged by judicial review,” he had added.

Judge Johnson had gone on to say that the council was under a continuing obligation to secure that the accommodation provided was suitable and that it could be asked to make a further decision as to suitability if, for example, circumstances changed.

That would then place an obligation on the council to consider whether circumstances had changed and to act rationally in dealing with that request.

Counsel for Redbridge confirmed that that was the course which the council would take in the event that such a request were to be made.

Lord Justice Males said that although the applicant had estimated that her cost of electricity would be £20 per week, her first electricity bill at the property allocated to her, which she received on 28 March 2018, was equivalent to a weekly cost of £28.58 in the period covered (11 December 2017 to 22 March 2018).

As a result she asked Redbridge to carry out a further review of its decision as to the suitability of the accommodation for her.

The applicant's case was that the unaffordability, and hence unsuitability, of the accommodation provided to her was demonstrated by the electricity bill which she received.

“It was not suggested when requesting this further review, or in the court below, that there was any other reason to suppose that there had been a material change of circumstances since the property was allocated to her,” Lord Justice Males said.

“However, although the particular electricity bill was higher than the estimate of £20 a week originally provided, it covered the coldest part of the year and was therefore likely to be atypical when balanced out over the year as a whole.”

In the light of that, Lord Justice Males had directed that the applicant should produce her electricity bills over a longer period.

“Those have been produced and confirm that the cost of electricity, averaged out over a longer and representative period, is actually below the estimate of £20 a week on which the conclusion as to suitability and affordability was initially based. Strictly speaking, I accept that this is not directly relevant, but it does to my mind confirm that the decision not to conduct a review based on the single electricity bill put forward, but which covered only the winter period, was a rational decision,” the Court of Appeal judge said.

Lord Justice Males concluded that the applicant had no real prospect of showing on appeal that the judge's conclusion that it was too late to request a statutory review should be overturned, and moreover that there was no basis to suppose that the council's refusal to reconsider the question of affordability in the light of the electricity bill produced was irrational.

“Accordingly there is no real prospect of a successful challenge to the decision which is actually in dispute in these proceedings and for that reason permission to appeal must be refused,” Lord Justice Males said.

The Court of Appeal judge noted that in the course of providing the updated evidence as to electricity bills, the applicant's solicitor had produced further and more recent information about the applicant's finances. It was said that her expenses had increased, largely as a result of her children growing older and having additional needs.

However, he continued: “I need not go into those matters. It is accepted that, if the applicant's financial circumstances have changed as a result of those matters, such that there has been a material change so far as affordability is concerned, then that is a matter which the council would be obliged to consider if requested to carry out a review out of time.

“If there has been a change of circumstances since the period with which these proceedings are concerned (that is to say, the position in April 2018), then the applicant has the possibility of the remedy to which I have referred. But those later matters cannot affect the rationality of the council's decision not to reconsider suitability in April 2018.”

Lord Justice Males therefore refused permission to appeal.

After the Court of Appeal judge had given judgment counsel for the applicant suggested that his comments above may be relevant to the position of a person whose financial circumstances deteriorate after the expiry of the 21 day period referred to in section 202(3) and who therefore seeks a review of suitability out of time.

“He asked me to give permission for this judgment to be cited. I give such permission, although this remains a judgment on permission to appeal given by a single judge. I have, however, upheld the decision and reasoning of the judge, which is a reserved judgment of the Administrative Court,” Lord Justice Males said.

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