Court of Appeal rejects claim council had duty to tell tenant that he was entitled to another review when informing him main housing duty had been discharged

Lord Justice Newey said in his judgment: “There is no suggestion that [the appellant] was not made aware of the council's understanding that the main housing duty had come to an end.”

The appeal was brought by the appellant by his litigation friend, the Official Solicitor.

The appellant was resisting possession proceedings on the basis that he was owed the main housing duty under section 193(2) of the Housing Act 1996, while Wandsworth said any such issue should have been ventilated through the Act’s review and appeal procedures and in any event, it has long since ceased to owe the appellant the duty.

The background to the case was that following a medical report in 2019, Wandsworth granted him a non-secure tenancy, and accepted it owed him the main housing duty.

It said he could continue to live there until its duty under section 193 was discharged and this could arise if the appellant accepted accommodation offered under Part VI of the 1996 Act.

In March 2020 Wandsworth offered him accommodation at another location, and said that by accepting this offer “the council's homelessness duty to you will be discharged” and normally only one such offer would be made.

The appellant was reminded he had "the right to request a review of the suitability of this offer irrespective of whether you wish to accept or refuse it” and he later signed a tenancy agreement.

His solicitor asked Wandsworth for a review because of concerns about the new accommodation including security, location, “no viewing” and “communication”.

The solicitor explained the appellant objected to “having been forced as he considers it to sign a tenancy agreement before viewing the property" and “considers that communication between himself and the council has been in his words ridiculous”.

The appellant moved to the accommodation but told the council: “Wandsworth council used coercion to get me to sign the tenancy agreement during coronavirus lockdown, and then restricted me from viewing the property, which would have obviously left me outside the statutory time frame of 21 days for an appeal…”

Wandsworth conducted the review and found the offer of accommodation was both in accordance with usual procedures, and that the appellant was notified of all relevant information.

The council was satisfied he voluntarily signed the tenancy agreement and was now a tenant at the accommodation and so the duty had been discharged.

The appellant had not at this time vacated the original accommodation and Wandsworth issued possession proceedings.

The Official Solicitor was appointed as the appellant’s litigation friend as he lacked capacity to conduct proceedings, and a defence was served that said the council continued to owe him the main housing duty and so “an eviction from the property, without the provision of suitable alternative accommodation, would be a breach of that duty”.

The case came before Wandsworth County Court where it was argued there should have been notification to the appellant under section 184 of the Housing Act, that the duty under section 193(2) was considered to have ended because he accepted the second accommodation and that the notification had to include information on his right to seek a review.

He was though ordered to give vacant possession of the original accommodation. An appeal was dismissed and the case came before the Court of Appeal.

Newey LJ said for the appellant to succeed it must have been incumbent on the council to tell him he was entitled to request a review.

It was argued for the appellant that such an obligation could be derived from sections 184 and 202 of the 1996 Act, but “I have not, however, been persuaded”, Newey LJ said.

He said Section 202(3) of the 1996 Act “does not, however, provide for an authority to be under an obligation to notify an applicant of a decision, let alone impose a requirement that an authority inform an applicant of a right to request a review.

“While section 202(3) refers to an applicant being 'notified of the authority's decision’ there is no reference to notification of a right to request a review.”

Newey LJ said section 184 of the 1996 Act did not assist the appellant because “it is hard to see why Parliament should have chosen to provide for an authority to 'notify the applicant that they regard themselves as ceasing to be subject to the duty under this section’ in section 193(5)(c) if it was anyway incumbent on it to notify the applicant of its decision (and with reasons) pursuant to section 184(3).

“The position would be all the odder when Parliament had elected to retain a notification requirement in section 193(5)(c) but not in relation to refusal of a Part VI offer, in respect of which section 193(7) formerly provided for notification that ‘the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it’”.

Newey LJ concluded: “In short, it seems to me that, even supposing (which is far from clear) that the letter containing the review decision incorporated a distinct decision which was susceptible to a further review, the council was not obliged to inform [the appellant] that he was entitled to request such a review. That being so, the appeal must fail.”

The Court of Appeal judge added: “I am anyway doubtful as to whether acceptance of [the appellant’s] case would have been likely to assist him. If…it was incumbent on the council to notify him that he had a right to a further review and he could raise its failure to do so in the present proceedings, he could presumably ask for such a review now.”

Accepting the second accommodation meant the council ceased to owe him the main housing duty and he had no right to continue to occupy the original accommodation.

Lady Justice Elisabeth Laing and Lord Justice Cobb both agreed.

Mark Smulian