Robert Winspear discusses the recent Court of Appeal decision in Hajjaj v City of Westminster; Akhter v LB Waltham Forest [2021] EWCA 1688

What you don’t know can hurt you (if you are a local authority making a private sector offer)

In these conjoined appeals, the Court of Appeal considered the steps that a local authority must take to satisfy itself that an offer of private rented sector accommodation (a ‘PRSO’), made pursuant to its statutory homelessness duties, is suitable.

What is the case about?

In both cases, the local authority made the applicant a PRSO, in attempting to discharge their homelessness duty.  In Mr Hajjaj’s case, he viewed the property but refused it as unsuitable because of the distance from the local school, shops, GP surgery and hospital.  In Ms Akhter’s case, she refused the property because of its condition and the medical needs of her family.

In both cases, the local authority concluded that their duty had ended.  Both applicants exercised their right of review, and Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 (“Article 3”) was addressed on review.

In Mr Hajjaj’s case, Westminster’s review decision simply made the bald assertion that the officer was “satisfied that sufficient regard was had to Article 3 when the offer of accommodation was made”.

In Ms Akhter’s case, Waltham Forest did address its Article 3 obligations somewhat more fully in its review response, stating that: “the property had been inspected and I have attached certificates for the property” and that “I do not find that the property was unsuitable as the agents would have been instructed by the council to complete the disrepair issues you reported”.

Both parties appealed to the county court, arguing that Article 3 obligations had not been complied with, and both appeals were dismissed.  Both were given permission to appeal to the Court of Appeal.

What did they argue?

Both applicants were represented by the same counsel on appeal. They argued that Article 3(1) set out 10 requirements that a local authority must be satisfied do not apply, before it can conclude a PRSO is suitable. If there is a lack of evidence showing that the requirements do not apply, then the PRSO must be deemed unsuitable and cannot be approved.

Westminster took a (shall we say…) interesting approach: arguing that the first 5 requirements of Article 3(1) only apply if the authority is “of the view” that certain matters are the case, and if the authority has no information whether or not any of those matters are the case, it would not be “of the view” that any of them is the case. As a result, Article 3 would not prevent the authority regarding the accommodation as suitable.

Furthermore, Westminster argued, while circumstances might require an authority to view a property (for example, a new provider with no track record or one with a poor history, or where the applicant raises concerns following a viewing), if the accommodation is provided by an established provider with a good track record (as in Mr Hajjaj’s case), the authority is entitled to assume that the provider would not make the accommodation available unless it was in reasonable physical condition.  Effectively, the Article 3(1) requirements do not apply in such a situation.

Waltham Forest (no doubt because its review officer made a better attempt at justifying compliance with Article 3) argued that, in addition to Westminster’s submissions, there was ample evidence on which the review officer could find the accommodation offered was suitable: the managing agent, Mears Housing Management, had provided the necessary safety certificates, and an inspection report had been prepared before the offer was made.

What did the Court decide?

Bean LJ gave short shrift to Westminster’s argument, which was essentially that if there is no information to conclude Article 3 does not apply, they cannot fall foul of Article 3.

He held that a local authority must satisfy itself of the non-applicability of the ten bars to suitability in Article 3, and that it must do that “on the basis of evidence rather than assumptions. Taking “reasonable physical condition” as an example, it is not enough to take the view that because the proposed landlord is established and respectable, therefore all properties owned by that landlord should be assumed to be in a reasonable physical condition unless a “red flag” is raised either by the applicant or by some other adverse information which happens to be to hand about the particular property.”

However, he did qualify the requirement for evidence about the Article 3 bars, by emphasising that “[t]his is not, of course, to say that the LHA must have first hand evidence such as could be placed before a jury in a criminal trial. Satisfactory hearsay evidence may be enough. The Mears inspection report of 31 January 2020 in Ms Akhter’s case is a good example.”

On the facts of the two appeals, he concluded that the evidence provided by Mears to Waltham Forest was enough to show that Article 3(1) had been considered in Ms Akhter’s case, but the bald statement in Westminster’s review decision was “simply based on assumptions.”

There was also an obiter discussion about Article 3(1)(j), which mandates PRSO landlords to provide the tenancy agreement which they propose to use.  Bean LJ commented that where the letting is to be on terms of a standard form tenancy agreement, it was not necessary for the text to be sent to the local authority each time a property was to be let.  He considered that even if it were necessary to provide such a document, it was unfair to Waltham Forest to allow Ms Akhter to raise the point on appeal for the first time.

Comment

This decision effectively creates (or clarifies) an additional obligation on local authorities: to obtain some evidence, or undertake an inspection, in relation to private sector accommodation – before they can conclude that the Article 3(1) requirements do not apply, and that a PRSO is suitable.  Assumptions based on the good standing of the PRSO provider are not enough.  Without some evidence that the Article 3(1) requirements do not apply, the property is likely to be unsuitable, and the PRSO vulnerable to challenge.

A more niche point, perhaps, is that it does not appear to matter whether Article 3 suitability complaints are raised immediately following the property viewing, or later, in review representations.  Mr Hajjaj only raised his Article 3 complaints in his solicitor’s representations.  Ms Akhter raised them following her viewing, but her solicitors made no representations about them.

It seems that so long as the Article  3 complaint is made prior to the review decision, it is a valid ground of challenge.  Things may well be different if such a complaint were raised for the first time on appeal, not least in light of Bean LJ’s comments about the late raising of the tenancy agreement argument.

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2nd Dec 2021

Robert Winspear

Call 2019