West Law Report

House cannot become retrospectively suitable

Posted in Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 11, 2008
House cannot become retrospectively suitable

Court of Appeal

Published November 11, 2008

Boreh v Ealing London Borough Council

Before Lord Justice Wall, Lord Justice Toulson and Lord Justice Rimer

Judgment October 29, 2008

The suitability of accommodation offered by a local authority was not to be judged exclusively by reference to its condition at the time of the offer, but could and should take into account any adaptations or alterations that were proposed to be made at the date of the council’s review decision.

The Court of Appeal so held in a reserved judgment in allowing an appeal brought by the claimant, Mrs Basra Boreh, against the dismissal by Mr Recorder Gore, QC, at Croydon County Court on October 31, 2007, of her appeal from a review decision of Ealing London Borough Council upholding its finding that it had no continuing duty to rehouse her.

Mr Christopher Jacobs for Mrs Boreh; Ms Barbara Zeitler for Ealing.

LORD JUSTICE RIMER said that the claimant became homeless following her landlord’s repossession of premises she occupied. There was no question of her having become homeless intentionally. She was eligible for housing assistance and had priority need.

In purported discharge of its duty, the local authority offered the claimant a house which the claimant declined on the ground that it was unsuitable in view of her medical conditions which included miliary tuberculosis, arthritis, gastritis, diabetes, osteoporosis and possible heart disease. She could not stand unaided for more than two minutes and used a wheelchair. She declined the offer.

By a letter dated March 12, 2007, the local authority restated its position that the house was suitable for her. At that stage, there was no suggestion of any alterations needed.

The claimant was advised of her right to request a review within 21 days. She did so and the review decision was given on July 13, 2007, concluding that the house was a suitable offer of accommodation, subject to some alterations that needed to be made.

The claimant was dissatisfied and exercised her right of appeal to the county court under section 294 of the Housing Act 1996.

The issue before the recorder was the lawfulness of the review decision dated July 13, 2007, to uphold the local authority’s earlier decision of March 12, 2007, that the offer of the house was an offer of suitable accommodation.

The recorder noted that an interesting question raised was as to the point of time at which the suitability of the offered accommodation was to be addressed.

His Lordship agreed with the recorder that the suitability of offered accommodation was not to be judged exclusively by reference to its condition at the time of the offer, but could and should take into account any adaptations or alterations that were proposed to be made.

However, the recorder fell into error when he proceeded on the basis that in considering the suitability of the house, it was legitimate to take into account proposals as to adaptations that were made right up to the date of the review decision.

The function of the review officer was confined to a review of the question of whether the house as offered on March 12, taking into account any proposals to adapt which the local authority had made by then, was suitable.

If and to the extent that the local authority might subsequently have proposed any adaptations and alterations with a view to making the house suitable, they were irrelevant to what the review officer had to consider and had to be ignored.

If, at March 12, the house as offered, including any then proposed alternations, was unsuitable, it could not become retrospectively suitable by subsequent adaptation proposals.

It was not apparent to his Lordship that the recorder or, more relevantly, the review officer, drew that distinction. The recorder therefore misdirected himself in so far as he regarded the review officer as entitled to take account of adaptations proposed after March 12.

The local authority had not therefore discharged its duty towards the claimant because it had not offered suitable accommodation. Lord Justice Toulson agreed and Lord Justice Wall delivered a concurring judgment.

Solicitors: White Ryland, Shepherd’s Bush; Ms Sylvia Ashleigh, Ealing.

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