Abed v City of Westminster

Under the homelessness review scheme, a statutory review is a continuation of, or replacement for, the initial decision-making process. A procedural failure to make adequate inquiries into suitability before offering accommodation does not invalidate an otherwise lawful review decision.

The applicant’s remedy is to request a full review, at which current facts, later information and representations must be considered. An appeal under section 204 of the Housing Act 1996 lies only for an error of law in the review decision. It cannot be founded solely on a defect in the process leading to the original offer.

Westminster City Council accepted that it owed the appellant the main homelessness duty under Part 7 of the Housing Act 1996. It offered her temporary accommodation in Ilford. She refused the offer as unsuitable, principally because of its distance from her caring responsibilities and medical treatment.

The council upheld the offer following a review. A further review, undertaken after a compromise of the first appeal, reached the same conclusion. HHJ Baucher dismissed the appellant’s appeal from that decision.

The sole issue before the Court of Appeal was whether the offer was incurably unlawful because the council had allegedly failed to assess suitability adequately before making it, despite the absence of any legal challenge to the subsequent review decision.

1. The appeal was dismissed unanimously. The appellant had not shown any error of law in the review decision. A challenge directed solely to the process preceding the original offer could not succeed under section 204 of the Housing Act 1996.

2. The statutory review procedure permits a different officer to reconsider the decision fully. The reviewer is not confined to the material or circumstances existing when the original decision was made. Relevant information obtained later, subsequent events and the applicant’s representations may all be considered. The approach in Mohammed v Hammersmith and Fulham LBC [2001] UKHL 57 and Sahardid v Camden LBC [2005] HLR 11 supported that conclusion.

3. The review is a continuation of, or replacement for, the initial decision-making process. Its function is comparable to the fresh decision formerly required after judicial review had quashed an original decision. Consequently, any inadequacy or unlawfulness at the first stage is superseded by the question whether the review addressed the substantive issues properly and reached a legally correct decision.

4. Even if the authority failed to make proper inquiries into suitability before offering accommodation, the applicant’s remedy is to request a review. That process provides a fresh opportunity to present the relevant material and imposes a fresh duty on the authority to make proper inquiries. Further recourse arises only where the review decision is wrong in law.

5. R v Newham London Borough Council, ex parte Ojuri (No 3) (1998) 31 HLR 452 concerned the interim duty under section 188, for which the statutory review and appeal procedure was unavailable. Its observations about inquiries before an offer did not establish that an initial defect was incurable where the statutory review scheme applied.

6. The practical dilemma faced by an applicant deciding whether to accept an offer pending review was inherent in the legislation. Fairness to applicants had to be considered alongside the need to avoid unreasonable difficulty and delay in the performance of local housing authorities’ functions.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2011] EWCA Civ 1406. The alleged defect in the original offer process could not found an appeal where no error of law was shown in the statutory review decision.

2. Central London Civil Justice Centre: HHJ Baucher dismissed the appellant’s appeal from the council’s review decision on 2 February 2011.

3. Administrative review: Westminster maintained the suitability decision on 28 April 2010. Following a compromise of the resulting appeal, a further review dated 8 October 2010 reached the same conclusion.