Muse v London Borough of Brent

Where temporary accommodation provided under section 193 of the Housing Act 1996 becomes unsuitable, the housing authority must secure suitable alternative accommodation. If the applicant refuses a suitable offer after receiving the warnings and review rights required by section 193(5), the authority’s housing duty ceases. The applicant cannot preserve that duty by electing to remain in the existing unsuitable accommodation.

Absent a misleading representation or other protection, fairness does not require the authority to offer a choice between moving and remaining. A fully informed and freely given waiver may permit an applicant to remain while relinquishing the immediate right to alternative accommodation, but waiver must be established on the evidence.

Brent accepted that it owed Mrs Muse the full homelessness duty under Part VII of the Housing Act 1996 and secured temporary accommodation for her family. After the family grew, Brent accepted that the accommodation had become overcrowded and unsuitable. It offered suitable alternative temporary accommodation, gave the warnings required by section 193(5), and treated its duty as discharged when Mrs Muse refused the offer.

A reviewing officer upheld that decision under section 202. On an appeal under section 204, HHJ Powles QC in Willesden County Court held that section 193(5) was not engaged because Mrs Muse still had a home when she requested a transfer. He also found unfairness because she had not initially been told that refusing alternative accommodation could jeopardise her position.

The central issues were whether section 193(5) applied and whether Brent was obliged, as a matter of fairness, to permit Mrs Muse to remain in her existing accommodation while retaining the housing duty.

1. Appeal allowed unanimously. Section 193(5) of the Housing Act 1996 applied when Mrs Muse refused suitable alternative accommodation. The county court’s contrary decision was set aside.
2. Per Arden LJ, with whom Pill LJ agreed, suitable temporary accommodation may perform or discharge the section 193 duty. Once that accommodation becomes unreasonable to occupy, the applicant becomes homeless again and the duty arises or becomes operative again. It was unnecessary to decide whether the original duty had meanwhile been fully discharged or merely remained capable of becoming operative. On either analysis, Brent had to secure suitable alternative accommodation.
3. Brent complied with section 193(5). The alternative accommodation was suitable, and the prescribed warning and information about review rights had been given. Refusal therefore brought the full housing duty to an end. It would be internally inconsistent to accept that the existing accommodation was unsuitable so that the full homelessness duty applied, while also asserting that the applicant was not homeless for the purpose of refusing the replacement accommodation.
4. Brent did not act unfairly by declining to give Mrs Muse a choice between moving and remaining. She sought alternative accommodation, knew that Brent regarded her existing home as unsuitable, received the statutory safeguards, and had legal advisers. Section 184 did not require the additional warning contended for. Although the required section 184(5) notice had not been given, no prejudice resulted, and that omission did not invalidate the later offer or remove Brent’s obligation to secure suitable accommodation.
5. A housing applicant may, in principle, give a fully informed and free waiver of the right to immediate alternative accommodation. A partial waiver might allow the applicant to remain while relinquishing reliance upon the changed circumstances that generated the need to move. No waiver could be found here because the issue had not arisen on review or below, was unsupported by evidence, and could affect other family members.
6. Brent had no legal right to instruct the housing association to obtain possession. Ending the statutory housing duty did not itself terminate the private tenancy or prevent Mrs Muse from remaining by agreement with her landlord.

1. Court of Appeal (Civil Division): Brent’s appeal was allowed unanimously. The county court’s decision was set aside because section 193(5) of the Housing Act 1996 applied and Brent had not acted unfairly.
2. Willesden County Court: HHJ Powles QC allowed Mrs Muse’s section 204 appeal on 4 April 2008. He held that section 193(5) was not engaged while she continued to have a home and that she had been treated unfairly.
3. Local-authority review: Brent’s reviewing officer upheld the decision that its section 193 duty had ended following refusal of suitable alternative accommodation.