Michael Mullin and Elizabeth England, acting for the Respondent, instructed by Sultana Ali, succeed in the Court of Appeal on the issue of what constitutes a refusal under s.193(7) of the Housing Act 1996.
Ms Nikolaeva appealed the decision of HHJ Luba QC on a statutory appeal upholding the decision that she had unreasonably refused an offer of accommodation by the LB Redbridge, who had accordingly considered that the main housing duty had come to an end. The appeal turned on whether the offer of accommodation made to her was a final offer of accommodation, and whether she had in fact refused it.
Redbridge had accepted the main housing duty, and placed Ms Nikolaeva in temporary accommodation pending a final offer of suitable accommodation. In May 2017, Ms Nikolaeva bid, through Choice Based Lettings, for a flat owned by Sanctuary Housing Association. She was successful in the bid, and on 17 May 2017 Redbridge wrote to her in terms that they had nominated her to the Sanctuary property and that they would shortly be writing to her to make the offer of accommodation – such an offer would constitute a final offer of accommodation for the purpose of the discharge of the main housing duty.
Ms Nikolaeva viewed the property on 8 June 2017, and on 29 June 2017 she attended a meeting with Sanctuary with a view to signing the tenancy agreement. She paid the deposit for the tenancy, but when she was presented with the tenancy agreement, she said that she did not agree with the terms. She refused to sign the tenancy agreement and walked away.
On 3 July 2017, Ms Nikolaeva wrote to Redbridge to say that she did not refuse the offer of accommodation but she was not going to sign the tenancy agreement because she did not agree with some of the terms. On the same day, Sanctuary contacted Redbridge to say that they needed to know whether the nomination was proceeding or whether to offer the accommodation to someone else.
On 4 July 2017, Redbridge spoke to Ms Nikolaeva and indicated that it would be taking her refusal to sign the tenancy agreement as a refusal of the offer. On 7 July 2017, Ms Nikolaeva attended a meeting with a council manager and, later that day, Redbridge notified her that they had discharged the main housing duty.
The appeal was pursued on two grounds; first, it was said that the reviewing officer’s finding that Ms Nikolaeva had refused the accommodation on 4 July was wrong as she had in fact refused it on 29 June. That being the case, she had not been given sufficient time to consider the offer, because she had only been presented with the terms of the tenancy on that day. It was also argued that she had never, in fact, refused the offer; she had only refused to sign the tenancy agreement. Secondly, there was no evidence that the accommodation was in fact available on 4 July for Ms Nikolaeva to accept, because Sanctuary had indicated an intention on the 3 July to take the property back if no nomination was received by the following day.
The Court of Appeal dismissed the appeal. It held that the refusal of accommodation was continuous from 29 June to 4 July. On the basis of tolerably clear material, the reviewing officer had been entitled to find that the refusal began on 29 June 2017 at the earliest when Mrs Nikolaeva refused to sign the tenancy agreement and was maintained up to and including 4 July 2017. The reviewing officer simply had to be satisfied that there had been a refusal of the accommodation on a plain understanding of the facts (para 58). In addition, the Court found that the argument that a person could accept a nomination without accepting the property would make a mockery of the main housing duty (para 49). The second ground of appeal failed for lack of evidence and was held to be the only decision that could have been reached. There was no suggestion that the property was not available at any relevant time.
The case raised an interesting point about whether a local housing authority needs to identify the exact moment of a refusal of accommodation. The Court of Appeal has said no, and in our view rightly so. It would be undesirable for both parties to have to identify a specific point in time – potentially restricting both parties in a situation where an applicant is advised to take some time to reconsider their position. The flexibility that this decision affords is entirely in keeping with the reality of dealing with vulnerable and often chaotic homeless applicants. The housing authority need only be satisfied that the offer has not been refused – whether that is by express refusal or by conduct.
The secondary point of some legal interest was the attempt to define the offer of accommodation for the purpose of the statutory scheme as the nomination to housing association as being separate from the grant of the relevant tenancy. These are certainly easily distinguished – one being a discharge of statutory duty, the other being a matter of contract – but they are mutually reliant. The Court was not persuaded that a final offer could consist solely of the nomination (para 49) and that it must also consist of both the nomination and the offer of a tenancy.
A copy of the judgment can be found here.