Boreh v London Borough of Ealing

When assessing whether accommodation is suitable for a homeless applicant, a housing authority may take account of proposed adaptations as well as the property’s existing condition. The proposals must exist when the relevant offer is made and be supported by assurances which the applicant can fairly regard as certain, binding and enforceable. Whether the proposed works will make the accommodation suitable is a question of fact and degree.

A review of an offer cannot rely on adaptations first proposed after the authority’s operative decision. Later proposals cannot make an unsuitable offer retrospectively suitable. Where an adaptation is essential, the review decision must identify an adequate evidential basis for finding that its provision was assured at the relevant time.

A homeless applicant who used a wheelchair was owed the main housing duty under section 193(2) of the Housing Act 1996. The local authority offered her a privately owned house. She refused it because, among other matters, there was no ramp permitting wheelchair access through the front door.

The authority decided that the house was suitable and that its duty had ceased under section 193(5). A reviewing officer upheld that decision after referring to the owner’s willingness to install a ramp and to other possible alterations. The county court dismissed the applicant’s appeal under section 204.

The central issue on the second appeal was whether the review could uphold the original suitability decision by relying on adaptations whose existence, timing and terms had not been established when the operative offer was made.

1. Appeal allowed unanimously. The suitability of offered accommodation is not determined exclusively by its physical condition at the time of the offer. Proposed adaptations may be considered, but the applicant must be able to regard the relevant assurances as certain, binding and enforceable. Whether the proposed works will cure an existing deficiency is a question of fact and degree. Simple works capable of being completed quickly may render accommodation suitable, whereas major works which make it uninhabitable in the meantime may not.

2. The reviewing officer’s function was confined to deciding whether the house offered on 12 March 2007 was suitable, taking account only of adaptations proposed by that date. Adaptations proposed afterwards were irrelevant. An unsuitable offer could not become retrospectively suitable through later proposals. The Recorder therefore erred by treating proposals made up to the date of the review decision as relevant.

3. Section 206 of the Housing Act 1996 did not govern the ascertainment of suitability. It identified the ways in which an authority could secure accommodation. Questions of suitability were addressed by section 210.

4. The absence of a front-door ramp made the house unsuitable for this wheelchair user. Access through the side alleyway was not an adequate answer, particularly because the unchallenged evidence showed that its gate required widening. Although the reviewing officer relied upon the owner’s agreement to provide a ramp, she made no finding that an adequate assurance had been given before the operative decision. Her conclusion therefore lacked a sufficient evidential foundation and was unlawful.

5. The county court’s order was set aside. The review decision was varied by substituting a declaration that the offer was not one of suitable accommodation and that the authority had not been discharged from its duty under section 193.

• Court of Appeal (Civil Division): Allowed the applicant’s second appeal, set aside the material parts of the county court order, and substituted a declaration that the accommodation was unsuitable and that the authority’s section 193 duty continued.

• Croydon County Court: Mr Recorder Gore QC dismissed the applicant’s section 204 appeal, holding that the reviewing officer could consider proposed adaptations and had been entitled to find that they would make the property suitable.

• Local authority review: On 13 July 2007 the reviewing officer upheld the authority’s decision of 12 March 2007 that the accommodation was suitable and that refusal had discharged its housing duty.