Court of Appeal dismisses appeal over whether hostel room was “suitable accommodation”

The Court of Appeal has dismissed a woman’s appeal against a decision that a room in a hostel was "suitable" accommodation for her to continue to occupy.

Lord Justice Newey found that the review officer “was entitled to conclude that Room 7 was ‘suitable’ and, accordingly, that the relief duty came to an end pursuant to the Housing Act 1996”.

The Court of Appeal judge said that the appellant had since December 2021 lived at the hostel where she has a room of her own ("Room 7") but shares bathroom and kitchen facilities. The accommodation is provided on half board terms.

The appellant came to the United Kingdom from Somalia in 2010. In August 2021, she was granted leave to remain and, as a result, told that she would have to leave the accommodation provided through the National Asylum Support Service ("NASS") in which she was living.

On 3 November 2021, a homelessness application was submitted to the London Borough of Haringey and a housing needs officer was allocated to her case.

On 17 November, the officer spoke to the appellant and recorded that the NASS accommodation would be ending on 2 December and that she had "blood pressure, hearing impairment – hearing aid, diabetes 2, high cholesterol".

A "vulnerability questionnaire" was completed, which included questions on "Physical and/or mental health issues" and "Management of day-to-day activities (ability to fend)".

Lord Justice Newey said: “Asked how her health affected her on a daily basis, she explained that her eyesight had been affected and that she wore glasses. She further confirmed that she was able to prepare meals for herself and to go food shopping.”

Following the interview, the officer recorded in the case notes the appellant, "No overt reason to believe more vulnerable than the average person".

On 2 December 2021, the officer explained that she had found the appellant to be homeless and eligible for assistance and that the council therefore had a duty to make an assessment of her case and to take reasonable steps to help her to secure that suitable accommodation became available for her occupation.

The "Assessment and Personalised Housing Plan" recorded as regards "Clients' needs":

"Support needs:

• • Somali interpreter is needed
  • Can read in Somali but struggles with writing as she never attended school
  • Benefits have been applied for on behalf of client, who is now in receipt of Universal Credit (UC)"

The officer told Haringey Migrant Support Centre in emails that the hostel had proved to have vacancies and that the appellant could "make her way now".

The officer explained that the room in the Hostel which the appellant was to have was single occupancy, that it was "not temporary accommodation or supported", that the hostel provided three meals a day for which a service charge would be payable and that the council would pay the first month's service charge.

In a letter dated 14 December 2021, the officer informed the appellant that the council's "relief duty" under section 189B of the 1996 Act had come to an end because she had "accommodation that is available to you for at least 6 months and which is suitable for your household to occupy".

On 7 February 2022, the appellant applied for permission to proceed with a claim for judicial review, contending that the "decision to accommodate [her] in the accommodation was unlawful because the accommodation is unsuitable".

Lord Justice Newey said: “That application came before Upper Tribunal Judge Ward, sitting as a Judge of the High Court, on 24 February. In a judgment given that day, Judge Ward refused permission to apply for judicial review, agreeing with the council that [the appellant] had an appropriate alternative remedy through the review procedure and, potentially, an appeal to the County Court pursuant to section 204 of the 1996 Act.”

In a decision letter dated 7 April 2022, the review officer, Mr Minos Perdios, confirmed that he was “satisfied that the council's section 189B duty to [the appellant] had come to an end as she had accommodation that was available for her for at least six months and which was suitable for her household to occupy and, hence, that section 189B(7)(a) of the 1996 Act applied to her”.

The judge noted that Mr Perdios considered "Cooking Facilities & Medical Issues" in a separate section of the Decision Letter. Mr Perdios explained that the hostel manager had provided sample menus and said that "residents had a choice of vegetarian and meat-based meal (meat is halal) options at dinner times and are able to swap side dishes between the options as they choose and includes a range of salads and vegetables".

Mr Perdios said:

“Your solicitor highlighted that on one Friday there was battered fish and chips and the alternative was pizza. On the odd day there might be an option that is not considered healthy, e.g. pizza. However, you are not prevented from eating pizza occasionally and I have highlighted that the NHS advise that you can eat anything but just merely limit certain foods. In any case, on the odd day that there is something like pizza you do have the financial resources to purchase something more healthy.

“Given the above, I am satisfied that the hostel does meet your dietary needs in terms of your diabetes.”

Mr Perdios was also satisfied that the accommodation was suitable for the appellant in terms of sharing facilities.

Before the Court of Appeal, the appellant contended that the London Borough of Haringey had failed in its responsibilities under the Housing Act 1996. “More specifically, she contends that Room 7 does not amount to "suitable" accommodation and that it is not reasonable for her to continue to occupy it”, Lord Justice Newey added.

On 3 November 2022, Snowden LJ granted permission on a single ground to appeal against Judge Ward's decision.

Lord Justice Newey added: “By this point, [the appellant]had also appealed to the County Court under section 204 of the 1996 Act. On 31 January 2023, in the light of the pending appeal from Judge Ward's decision, His Honour Judge Luba KC, sitting in the County Court at Central London, transferred the appeal to this Court and, on 21 April, Andrews LJ accepted the transfer.

“There were thus before us both the appeal from Judge Ward's decision and the appeal under section 204 of the 1996 Act”.

Outlining the submissions from the parties, the judge said that counsel for the appellant disputed Mr Perdios’ conclusion that Room 7 was "suitable" accommodation.

“She also argued that, even if the council was entitled to bring the relief duty to an end in reliance on section 189B(7)(a) of the 1996 Act on the basis that "suitable" accommodation was available, it was not "reasonable" for [the appellant] to continue to occupy Room 7 and so she remained "homeless" and someone to whom the main housing duty could be owed”, said the judge. 

Counsel for Haringey submitted that the appeals should be dismissed. It was maintained that Mr Perdios was justified in concluding both that the council's relief duty had come to an end and that section 193 did not apply since the appellant was not homeless.

Discussing the relationship between sections 189B and 193 of the 1996 Housing Act, Lord Justice Newey said: “The authorities confirm that reasonableness and suitability are distinct concepts.

“In Birmingham City Council v Ali [2009] UKHL 36, [2009] 1 WLR 1506 ("Ali"), one of the issues before the House of Lords was, as Baroness Hale explained in paragraph 27, "whether accommodation which it is not reasonable to expect the applicant to continue to occupy can nevertheless be suitable accommodation for the purposes of the duty under section 193(2)".”

Ms Murray, on behalf of the appellant, pointed out that Baroness Hale used the word "indefinitely" a number of times in Ali (paragraphs 9, 47, 48, 52, 64, 65 and 66).

Lord Justice Newey said: “There is no question, however, of Baroness Hale having meant that accommodation had to be available "indefinitely" for it to be reasonable for a person to continue to occupy it.”

He added: “Her concern, […] was with whether a person could be expected to put up with accommodation indefinitely (or "for so long as he or she will have to do so unless the authority take action", to quote from paragraph 46), not with ensuring that the person would be able to remain there indefinitely. She was not suggesting that, for it to be reasonable for a person to continue to occupy accommodation, the person had to be able to stay there indefinitely, or even for any particular period of time.”

Turning to the present case, the judge said: “where a local housing authority duly brings its relief duty to an end pursuant to section 189B(5) and (7)(a) of the 1996 Act on the basis that suitable accommodation is available, that may not necessarily prevent the applicant from being owed the main housing duty as "homeless". However, it must very often at least be the case that a person for whom such suitable accommodation is available is not "homeless". Where that is so, the condition specified in section 193(1)(a)(i) will not be met and so the main housing duty cannot arise. Contrary to a submission advanced by Ms Murray, the local housing authority would not need to make a "final accommodation offer" or "a final Part 6 offer" (as defined in section 193A) for the main housing duty to be inapplicable. The fact that the applicant was no longer "homeless" would of itself have the consequence that the applicant could not be owed the main housing duty.

He added: “There remains the question whether, on the particular facts of this case, [the appellant] was "homeless" and so potentially owed the main housing duty even if the council was entitled to bring its relief duty to an end on the strength of "suitable" accommodation being available. I shall return to that issue later in this judgment.”

Turning to the issue of suitability of the hostel room, Lord Justice Newey noted that it was “evident” from the decision letter that Mr Perdios considered the suitability of Room 7 on a long-term basis, not just as emergency accommodation.

He said: “Amongst the criticisms which Ms Murray advanced were that there were inadequate inquiries into whether [the appellant] was disabled; that it was unreasonable not to obtain further medical advice; and that [the appellant] should have been asked more about her living expenses.

“However, Mr Perdios was aware of [the appellant’s] medical conditions and accepted that, as a result, she was disabled: he did not therefore need to undertake any additional inquiries into whether there was disability. Nor can he be criticised for failing to obtain extra medical advice.”

Further, he said: “Mr Perdios was not, in my view, obliged to ask [the appellant] more about her expenditure. Many of the costs which an applicant normally has to bear were here covered by the hostel's service charge.”

The Court of Appeal judge added: “That being so, I do not think it was unreasonable for Mr Perdios to consider that he was in a position to assess the affordability of Room 7 without additional information, the more so since Lawstop had the chance to draw his attention to any costs which he might have overlooked after he had told them what he was ‘minded to’ conclude.”

Turning to the public sector equality duty (PSED), the judge said that the PSED requires a public authority to have due regard to, among other things, the need to advance equality of opportunity between persons who share a relevant "protected characteristic" and persons who do not share it.

He noted that one of Ms Murray's criticisms was that Mr Perdios failed to recognise that it was the combination of needs arising from the appellant’s disability that rendered Room 7 unsuitable for her: the need to urinate frequently, Ms Murray said, arises where the appellant’s blood sugar levels become elevated in response to the food she is given.

However, he said: “Mr Perdios considered both whether [the appellant’s] diabetes made the food served at the hostel inappropriate and, even supposing that [the appellant] needed to use the toilet every 20 minutes, whether adequate toilet facilities were available.”

Concluding, Lord Justice Newey said: “In my view, Mr Perdios was entitled to conclude that Room 7 was "suitable" and, accordingly, that the relief duty came to an end pursuant to section 189B(5) and (7)(a) of the 1996 Act.”

Briefly touching on the issue of homelessnes, he said: “Earlier in this judgment, I rejected any suggestion that accommodation must be available "indefinitely" for it to be reasonable for a person to continue to occupy it. However, Mr Perdios did in fact state in terms in paragraph 3 of the Decision Letter that the accommodation in the Hostel would in reality "remain available to [the appellant] not just for six months but indefinitely".”

The Court of Appeal judge dismissed both appeals. Lord Justice Underhill and Sir Geoffrey Vos agreed.

Lottie Winson