Omar v City of Westminster

Where a local housing authority has offered accommodation, the applicant has refused it and the authority has finally decided that its housing duty has ceased, a statutory reviewer must determine whether that decision was correct by reference to the circumstances existing on the original decision date. The reviewer may consider evidence obtained later, but only so far as it reveals facts which existed on that date.

The relevant date depends on what is being reviewed and, absent a contrary statutory provision, what fairness requires. A review forming part of a continuing decision-making process may properly consider circumstances at the review date. A defective review decision should not stand unless the same outcome would inevitably have followed from a lawful review.

Westminster City Council accepted that the appellant and his family were homeless and owed the main housing duty under the Housing Act 1996. It offered temporary accommodation in Walthamstow. The appellant refused the offer because his prematurely born son attended hospital in Westminster and the family relied on local support.

The council decided that the accommodation was suitable and that its duty had ceased. A reviewing officer upheld both decisions, relying materially on medical evidence obtained several months after the offer and refusal. On an appeal under section 204, the Central London County Court upheld the review decision.

The central issues were whether the reviewer should have assessed the discharge decision by reference to circumstances at the original decision date or the review date, and whether any error was immaterial because the result would inevitably have been the same.

1. Appeal allowed. The review decision was defective and a further review was required. That review had to concentrate on the circumstances existing on 23 February 2007, as subsequently discovered through the available evidence and any further enquiries.

2. The date by reference to which facts must be assessed depends upon the decision under review. Unless a compelling legislative provision requires otherwise, fairness governs the choice. Common sense may favour the review date where the decision-making process remains continuing, as in Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547 and Sahardid v Camden London Borough Council [2005] HLR 11.

3. A different approach applies where accommodation has been offered and refused and the authority has finally decided under section 193 of the Housing Act 1996 that its duty has ceased. The reviewer must decide whether the authority was correct at the date of that decision. Later evidence is admissible only to establish facts which existed at that date. This approach was supported by Osseily v Westminster City Council [2007] EWCA Civ 1108 and Robinson v Hammersmith & Fulham LBC [2006] 1 WLR 3295.

4. The reviewing officer had not applied that approach. The medical questionnaire completed in May was a principal basis for finding the accommodation suitable and the duty discharged. The review letter did not assess the child's medical circumstances and the family's position as they existed on 23 February.

5. The decision could not be preserved on the ground that the result would inevitably have been the same. The evidence indicated weekly hospital attendance, an established relationship with the hospital and reliance on local support. The court could not conclude that a lawful reviewer would inevitably have found accommodation 9.5 miles away suitable.

Waller LJ gave the judgment. Tuckey and Sedley LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was allowed. The review decision was defective, and the matter was directed to a further review focused on the circumstances existing when the council decided that its duty had ceased.

2. Central London County Court: HHJ Bailey dismissed the appellant's section 204 appeal. He held that the reviewer could consider review-date facts when assessing suitability, but had to use original-decision-date facts when reviewing whether the duty had ceased. He found that the reviewer had done so and that, in any event, the same result was inevitable.

3. City of Westminster statutory review: The reviewing officer upheld the decisions that the offered accommodation was suitable and that the council's duty under section 193 of the Housing Act 1996 had ceased.