The Court of Appeal has upheld an appeal from an applicant who rejected an offer of accommodation while under a misapprehension that was only revealed after the refusal. Emily Orme analyses the case.
In Mohamoud v Birmingham City Council  EWCA Civ 227 the Court of Appeal has held that reg. 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71 was engaged in circumstances where the applicant misunderstood the process by which accommodation would be offered to her, but that misunderstanding only became apparent after her refusal of the offer of accommodation and the decision of the authority that they had discharged their duty towards her.
When a person applies to a local housing authority under Part 7, Housing Act 1996 and the authority are satisfied that he is homeless, eligible for assistance, in priority need and not homeless intentionally then, unless the authority refer the application to another housing authority under the local connection provisions (ss.198- 200), they must secure that accommodation is available for occupation by the applicant (s.193(2), Housing Act 1996).
An authority ceases to be subject to this duty, inter alia, if the applicant, having been informed of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6, 1996 Act which the authority is satisfied (at the time the offer is made) is suitable and reasonable for him to accept (ss.193(7), 1996 Act).
The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under s.193, 1996 Act (s.202(1)(b), 1996 Act). It has been held that s.202(1)(b) permits a review of a decision that a duty is no longer owed: Warsame v. Hounslow LBC (1999) 32 H.L.R. 335, CA, approved (notwithstanding amendments to ss.193 and 202 by Homelessness Act 2002) in Ravichandran v LB Lewisham  EWCA Civ 755;  H.L.R. 42.
The procedure to be adopted on review is prescribed (s.203, 1996 Act, Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71). If the authority decide that there was a "deficiency" or "irregularity" in the original decision, but nonetheless proposes to reach a decision which is adverse to the applicant, the reviewer must inform the applicant that he is so minded and of the reasons why, and afford the applicant or someone acting on his behalf an opportunity to make further representations either orally or in writing, or both (reg. 8(2), 1999 Regulations). It has been held that an original decision may become deficient in the light of intervening events between the date of the original and the review decision: Banks v Kingston-upon- Thames RLBC  EWCA Civ 1443;  H.L.R. 29; NJ v Wandsworth LBC  EWCA Civ 1373;  H.L.R. 6.
If the applicant is dissatisfied with the decision on review, he may appeal to the county court on a point of law (s.204(1), 1996 Act).
In April 2012, Ms Mohamoud applied for assistance under Pt.7, Housing Act 1996. Birmingham accepted that they owed the full duty (s.193(2)) and informed her that they would make one offer of accommodation in order to discharge that duty. It was explained that properties were advertised each week and that the applicant would be able to bid for a maximum of three properties each week. At the end of the week, the property would be offered to the person who had the highest priority, which may or may not be the applicant. In July 2012, a final offer was made. She declined the offer because the flat was too small and she did not want to live in a high rise flat. The council decided that the property was suitable and reasonable for her to accept and that, as a result, they had discharged their duty under s.193.
Ms Mohamoud instructed solicitors to act on her behalf and requested a review. In her submissions, she claimed that she had misunderstood what she had been told by the council; she thought that she would receive up to three offers of accommodation. She suggested that the confusion could have arisen as English was not her first language and she had been advised by friends who had been through a similar process that she would receive three offers. The review officer rejected these contentions and upheld the original decision.
Ms Mohamoud appealed to the county court, contending that her confusion and limited command of English were new matters which should have triggered a “minded to” letter under reg.8(2). The county court judge rejected that argument.
Ms Mohamoud successfully appealed to the Court of Appeal. The essence of her case was that she had been confused and rejected the offer under a misapprehension. If that was true, and if it had been drawn to the attention of the original decision maker, it might have led to a different conclusion. The review officer should have accepted that there was a deficiency in the original decision and that reg.8(2) was engaged.