Akhtar v Birmingham City Council

A local housing authority has no general common-law duty to give reasons when it decides a homelessness review in the applicant’s favour or when it offers accommodation as suitable. Fairness may require reasons in an appropriate case, but the statutory scheme and the circumstances must be considered as a whole.

An applicant cannot appeal against the reasoning underlying a favourable review outcome. An offer implicitly conveys that the authority considers the accommodation suitable in all material respects. Prominent warnings about refusing a final offer, combined with the right to accept it while seeking a suitability review, may prevent any procedural unfairness.

The council owed the appellant the main homelessness duty under section 193(2) of the Housing Act 1996. After she successfully challenged an offer of accommodation at Twickenham Road, the council did not explain that the offer had been found unsuitable solely because of its size. She later refused a final offer at Hartley Road, believing that its location in the same area would also be accepted as unsuitable.

The council decided on review that Hartley Road was suitable and that its homelessness duty had ended. The Birmingham County Court dismissed the appellant’s statutory appeal, although it found defects in the council’s initial assessment which had been cured during the review.

The central question was whether common-law fairness required reasons for the favourable review decision or for the subsequent offer, despite the absence of an express statutory requirement.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. Etherton LJ gave the judgment, with which Rimer and Maurice Kay LJJ agreed. The circumstances were incapable of giving rise to a common-law duty to include the requested reasons in either letter.

2. The favourable review decision concerning Twickenham Road could not be appealed under section 204 of the Housing Act 1996 merely because reasons were absent. The review officer had decided the review solely on the dispositive ground that the property was too small. There was no duty to determine every other objection once that ground required a decision in the applicant’s favour. An appeal lies against an adverse outcome, not against reasoning underlying a favourable outcome.

3. Section 203(4) did not require reasons for a conclusion on a non-dispositive aspect of an otherwise successful review. Confirmation of the original decision on an issue refers to resolution of the review against the applicant. In a suitability review, there was in any event force in treating suitability as a single issue resting upon several grounds.

4. A final-offer letter need not explain why the authority considers the accommodation suitable and reasonable for the applicant to accept. Every such offer implicitly communicates that the authority regards the accommodation as suitable in all material respects, including its location, size and configuration. A bald statement to that effect would serve no useful purpose.

5. The successful challenge to the earlier property did not make it reasonable to assume that every objection to that property had been accepted. Nor did fairness require the later offer letter to explain that the earlier property had failed only because of size.

6. Any potential unfairness was avoided by prominent warnings about the consequences of refusing a final offer and notification that the applicant could accept the offer while seeking a review. Parliament provided that mechanism to mitigate the risk of irrevocably losing accommodation while disputing suitability. Its possible practical drawbacks did not justify importing additional common-law duties, particularly where Parliament had expressly prescribed other circumstances in which reasons must be given.

1. Court of Appeal (Civil Division): Permission to bring the second appeal was granted, but the appeal was dismissed unanimously: [2011] EWCA Civ 383.

2. Birmingham County Court: HH Judge Worster dismissed the appeal from the council’s review decision. He found that defects in the original suitability assessment had been cured during the statutory review and rejected the procedural-fairness challenge.

3. Birmingham City Council review: The review officer upheld the decision that Hartley Road was suitable and reasonable for the appellant to accept and that refusal had discharged the council’s homelessness duty.