Duties to the homeless

Newham LBC v Khatun [2004] EWCA Civ 55; Porteous v West Dorset DC [2004] EWCA Civ 244

Two recent Court of Appeal decisions have considered significant issues under part 7 of the Housing Act 1996.

The Court of Appeal considered the authority's policy of requiring applicants to accept or refuse accommodation offered to them under section 193(2) of the 1996 Act without being given an opportunity first to view the property.

It was held that nothing in the Act itself afforded an applicant the right to view the property.

However, the authority's policy did represent a departure from paragraph 9.12 of the code of guidance, which recommends that applicants be given a reasonable time for considering offers of accommodation.

That departure was justified because of the authority's goal of ensuring that applicants were moved out of interim accommodation as soon as possible.

The Court of Appeal went on to hold that there was nothing disproportionate in the authority's policy, given that applicants had the right to accept accommo-dation but request a review of its suitability, and that the authority operated the policy flexibly.

The Court of Appeal decided a separate issue, namely whether the Unfair Contract Terms in Consumer Contracts Regulations 1999 SI 1999/2083 apply to tenancy agreements for accommodation provided under part 7.

It was held that the regulations can apply to contracts relating to land, a conclusion that has far-reaching consequences for all landlords.

Furthermore, there was no reason why local authorities should be exempt from the regulations.

In the context of part 7 accommodation, there was a supplier/consumer relationship between the parties with the consequence that the regulations applied.

The Court of Appeal considered when an authority may reopen a decision which is favourable to an applicant.

On return from living in Germany, the applicant applied to the authority as a homeless person.

Prior to moving to Germany, she had been the tenant of another authority but she believed that tenancy had been transferred into her sister's name.

In fact, the transfer had not taken place and she remained the tenant.

The authority's inquiries did not reveal the existence of the tenancy and it decided that it owed her a full housing duty under section 193(2).

On discovering the tenancy, the authority revoked its decision and issued a fresh decision that the applicant was not homeless.

The applicant contended that the authority had no power to do so.

In R v Southwark LBC ex parte Dagou (1995) 28 HLR 72, QBD, it had been held that authorities only had the power to revisit favourable decisions where the applicant had been fraudulent.

However, in Crawley BC v B (2000) 32 HLR 636, CA Lord Justice Buxton suggested there were other circumstances in which decisions can be reopened.

In Porteous, the Court of Appeal concluded that an authority is entitled to revisit and change a decision as to what duty it owes under part 7 if, as in this case, that decision results from a fundamental mistake.

However, the Court did not give more general guidance as to when decisions may be reopened but acknowledged that while a decision may be reopened because of ignorance of matters prevailing at the time of the decision, it did not necessarily follow that changes in circumstances after the decision would justify such a action.

By Andrew Dymond, barrister, Arden Chambers