Temur v London Borough of Hackney

A review under section 202 of the Housing Act 1996 reconsiders the authority’s whole decision as to what duty, if any, is owed. The reviewer must address circumstances at the review date and may substitute a less favourable decision, including one based on different grounds.

When deciding under section 175(3) whether existing accommodation is reasonable to continue to occupy, the authority applies the distinct stage-one criteria in sections 175 to 177. It need not apply the suitability criteria governing accommodation provided under sections 206 and 210 or conduct a hazard assessment under the Housing Act 2004. The section 175(3) assessment must nevertheless consider the future as well as present and short-term conditions.

The appellant applied to the local housing authority for accommodation under Part VII of the Housing Act 1996. The authority initially decided that she was homeless and eligible for assistance but lacked priority need. While her section 202 review was pending, she obtained a small assured shorthold tenancy which she occupied with her young daughter. The reviewing officer decided that it remained reasonable for them to occupy that accommodation and therefore found that she was not homeless.

His Honour Judge Birtles dismissed her section 204 appeal in the county court. She appealed on the grounds that the reviewer could not substitute a less favourable decision on different grounds, should have conducted a hazard assessment under the Housing Act 2004, and had failed to consider whether continued occupation would remain reasonable in the future.

1. The appeal was dismissed unanimously. A request under section 202 of the Housing Act 1996 requires reconsideration of the whole decision as to what duty, if any, the authority owes. Sections 202 and 203 contain no restriction preventing the reviewer from reaching a less favourable decision or relying on different grounds. Regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 expressly contemplates a review decision against the applicant’s interests which differs from a deficient original decision.

2. The reviewer must decide by reference to circumstances existing at the review date. Supervening facts may expose a deficiency in the original decision and may alter the duty owed. Here the appellant had obtained accommodation after the original decision. The reviewer was therefore entitled to decide whether she remained homeless. The protection of an accrued benefit may be appropriate in some cases, but obtaining satisfactory accommodation was not such a case.

3. Part VII establishes two distinct assessments. At the first stage, sections 175(3), 176 and 177(2) determine whether existing accommodation is reasonable to continue to occupy. At the second stage, sections 206 and 210 govern the suitability of accommodation secured in discharge of the authority’s housing functions. Only the latter assessment may require a hazard assessment under Part I of the Housing Act 2004. The reviewing officer was conducting the first-stage assessment and therefore committed no error by omitting such an assessment.

4. The section 175(3) inquiry must look to the future. Accommodation which can reasonably be endured briefly may nevertheless render its occupants homeless if continued occupation would become unreasonable. The reviewer had addressed sleeping arrangements, noise, washing and bathroom facilities, overcrowding, the child’s needs and local housing conditions. His conclusion that continued occupation remained reasonable was open to him. If the difficulties increased as the child grew older, a fresh application could be made.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The reviewing officer had lawfully substituted a less favourable decision, was not required to conduct a hazard assessment, and had adequately considered future occupation: [2014] EWCA Civ 877.

2. Mayor’s and City of London County Court: His Honour Judge Birtles dismissed the applicant’s section 204 appeal on 9 August 2013. He upheld the reviewer’s power to substitute the decision and rejected the challenges to the reviewer’s reasoning.