Social Welfare Update: Looking to the future when considering whether applicant homeless at home, and procedural fairness in review process

Tuesday 28 May 2019

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The Appellant, Ms Safi, lived in a one-bedroom flat in Smethwick with her husband and their young son. The property comprised of the single bedroom together with a living room, kitchen and bathroom.

In November 2015, a few months after the birth of her son, Ms Safi sought homelessness assistance from the Respondent, Sandwell MBC. Her case was that she was homeless as it was not reasonable for her to continue to occupy the flat on the basis that it was overcrowded, affected by damp and mould, and difficult to access. The access issues arose from the fact that the flat was located on the first-floor of a block of flats with no lift, making it difficult to negotiate with a pram or pushchair.

Having considered Ms Safi’s application, Sandwell reached the view that she was not homeless. Ms Safi requested a review of this decision and, in February 2016, the review panel issued her with a decision indicating that they were minded-to uphold the original decision. This letter was not a true minded-to letter, for the purposes of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71, as it did not identify any deficiency or irregularity in the original decision.

In June 2016, Ms Safi’s solicitors responded to the minded-to letter. Three points were advanced on her behalf. First, that she was pregnant with a second child, due in October 2016, which would exacerbate the overcrowding issues. Second, the unsuitable access arrangements had not been considered by the panel, and these had recently resulted in Ms Safi falling on the stairs. Third, that the damp and mould issues – which Sandwell had suggested had been resolved – had recurred.

Later that month, the review panel issued a final decision upholding the original decision that Ms Safi was not homeless. In relation to the overcrowding, the position taken was that Ms Safi was registered on Sandwell’s allocation scheme and that if she was flexible in respect of the areas where she would be willing to live, then she would be rehoused within a reasonable period of time. In relation to the access arrangements, such problems were not uncommon and Ms Safi could use a baby carrier or a sling so as to keep her arms free when accessing the flat. In relation to the damp, an inspector would visit the property to arrange any necessary repairs or give advice if the damp was due to lifestyle choices.

Ms Safi’s appeal to the county court was dismissed. The Court of Appeal allowed a second appeal. In considering whether the property was reasonable to continue to occupy, the review panel had failed to properly follow the approach set down in Birmingham City Council v Ali [2009] UKHL 36, [2009] 1 WLR 1506 and consider whether the property would be reasonable to continue to occupy for the foreseeable future pending rehousing. In particular, the panel had failed to address the question of whether the impending birth of Ms Safi’s second child in October 2016 made it unreasonable to continue to occupy the flat in the long-term. Although Sandwell were entitled to take into account the likelihood of Ms Safi being rehoused under the allocation scheme, they had neglected to consider how long the property might be reasonable for the household to continue to occupy in the short-term and whether or not a suitable property would become available during that period.

In addition, the decision making process adopted by the panel had not been in accordance with regulation 6 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 or complied with the principles of natural justice. In particular, the panel had not informed Ms Safi or her solicitors of the procedure to be followed during the review by (among other things) informing them of the deadline for the making of representations in connection with the review. This failure had a knock-on effect on the decision making process. Had Ms Safi and her solicitors been informed of the timescales in which a decision was to be made, it was likely that representations would have been made before the minded-to decision was issued, allowing the panel to respond to the new matters she was raising in their minded-to decision. Ms Safi and her solicitors would then have had a chance to respond to the new points before a final decision was made.

A ground arguing that the decision making process was not in accordance with regulation 8(2) as the minded-to letter had informed Ms Safi of her right to make oral or written representations (as opposed to orally and/or in writing) was rejected. The breach had had no material impact as Ms Safi’s solicitors had submitted written representations and had not intended to make oral representations. Grounds arguing that there had been a lack of compliance with s11 Children Act 2004 and s149 Equality Act 2010 (in connection with the characteristics of pregnancy and maternity) were also rejected. The panel had had regard to the interests of the children and Ms Safi’s pregnancy and maternity, and were not required to refer to these statutory obligations expressly.

Read the full judgment here: Safi v Sandwell MBC [2018] EWCA Civ 2876, 21 December 2018 

Connor Johnston is a member of the Garden Court Chambers Housing team.

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