Case No: B2/2009/1830

Neutral Citation Number: [2010] EWCA Civ 77
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
(HIS HONOUR JUDGE SEROTA QC)
Claim No: 9MK01067
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 27th January 2010

Before:

LORD JUSTICE RIMER
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Between:

	ANGELA NORRIS	Appellant	
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	MILTON KEYNES COUNCIL	Respondent	

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(DAR Transcript of 
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Mr Adrian Marshall-Williams (instructed by GEA Solicitors) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.

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Judgment
Lord Justice Rimer:

1.	This is a renewed application for permission to appeal against the order dated 31 July 2009 made by His Honour Judge Serota QC in Milton Keynes County Court. He thereby dismissed Angela Norris’s appeal under section 204 of the Housing Act 1996 against the decision of a review officer dated 11 February 2009 to the effect that accommodation at 15 Weavers Hill, Fullers Slade, Milton Keynes that had been offered to her under the Council’s Housing Act duties was suitable. The application is for permission for a second appeal. The court will not give permission for second appeals save in respect of a ground or grounds that surmount the second appeal hurdles raised by CPR Part 52.13.  

2.	Mrs Norris suffers from epilepsy, and it is not in dispute that any accommodation she occupies should be fitted with a shower rather than a bath, since it is accepted that the use of a bath by an epileptic carries the risk of a drowning during a seizure. On 18 March 2008 an occupational therapist employed by the Council made a recommendation that Mrs Norris had a critical need for a shower over a bath, saying that a shower curtain and rail would be required, with additional tiling as necessary.  

3.	The property in question was offered to Mrs Norris by a letter of 30 October 2008 that stated that it was a final offer and that the Council’s duty would cease under section 193(7) of the 1996 Act if it was refused.  Mrs Norris viewed the property on 5 November 2008, as she had been invited to in the last paragraph of the letter, and concluded that it was not suitable because, amongst other reasons, of the absence of a shower. On 18 November 2008 she requested a review under section 202(1)(f) of the Council’s decision that the property was suitable, leading to the review decision of 11 February 2009. That decision upheld the earlier decision as to suitability and Judge Serota dismissed the appeal against the review decision.  

4.	A number of issues were raised as to the suitability of the property, but the only issue now alive concerns the absence of a shower. The challenge to the suitability of the property on the application for the review included the point that it had no shower. The review officer dealt with this in her decision letter by admitting that Mrs Norris needed accommodation with a shower, asserting that she could use a standard shower attachment to the bath taps and saying also that she had been told by the housing officer at the view on 5 November that any assessment made by the occupational therapist would be followed, including, if necessary, the fitting of a shower cubicle. That apparently referred to an assessment that was still to be carried out. The review officer’s opinion was that the assurance so given was, as she said, “certain, binding and enforceable” -- a reference to language that I had used in my judgment in Boreh v Ealing Borough Council [2009] 2 All ER 383, at paragraph [27].  Her point was that an assurance that the property would be adapted in line with any such assessment made the property suitable, although absent such adaptations it might perhaps be unsuitable.  

5.	The first ground of appeal against that decision, which failed before Judge Serota but is sought to be renewed, is that it is said that the Council’s decision dated 30 October 2008, whereby it offered the property to Mrs Norris, was a decision in the nature of an offer of a property which was unsuitable because of the absence of a shower. What is said is that the Council had by that letter implicitly decided that the offered property was suitable, whereas, given the admitted absence of any shower, it was not.  It is said that that deficiency in the decision triggered the review officer’s obligation under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. That provides that if the reviewer considers that there is a deficiency or irregularity in the original decision or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer must notify the applicant that he is so minded and why, and that the applicant or his agent may then make representations to the reviewer orally or in writing. That regulation is one about which I made some observations in my judgment in London Borough of Lambeth v Johnston [2008] EWCA Civ 690.  

6.	The second ground of appeal turns on the application of the principle derived from Boreh, to which I have referred. The judge’s view appears to have been that that principle was not in point since he regarded it as applying only to structural changes, and that in any event the absence of a shower did not make the property unsuitable even if its absence meant that it was not ideal. This ground of appeal seeks to assert that the reviewer was not entitled to take account of the assurances given on 5 November with regard to the matter of a shower, since, as those assurances rested on the implementation of the recommendations of an assessment that remained to be carried out, the very least that could be said about them is that they were insufficiently certain to show that the property was suitable.  

7.	My initial reaction to the regulation 8(2) point was that it was flawed on the basis that a consideration of the review officer’s decision shows that she had considered whether the original decision was deficient with regard to the question of the shower, and had concluded that it was not for the reasons she gave in her decision.  Mr Marshall‑Williams for the applicant, has however explained that it is necessary to draw a distinction between the decision itself - contained in the letter of 30 October 2008, in which there was no reference to any promise to a shower being installed - and the subsequent view of the property on 5 November when assurances were given of the nature I have described. Mr Marshall‑Williams’ submission is that what happened at the time of the view cannot be fed into the making of the decision which was earlier made on 30 October when the decision letter was sent. He submits that the correct position is that it was that decision that the review officer was reviewing and that she should have identified that it was deficient in that it was offering a property which had no shower. She should therefore have offered the applicant the opportunity of making further representations.  In Mr Marshall-Williams’ submission it is not possible, as the reviewer seems to have done, simply to treat the offer or decision as supplemented by the later events of 5 November. The judge appears to have taken a different view in paragraph 32 of his judgment where he said:

“There is an additional point but this is not one that was pursued with any great enthusiasm by the respondent.  However, I feel bound to say that it seems to me that an offer is not spent as soon as it is made, but is capable of adjustment at least by way of explanation and minor adjustment as, for example, on a site visit, whereas here I am quite satisfied that the Reviewing Officer was entitled to conclude that the respondent made clear that certain works would be carried out, so the offer should be seen as having been amended or clarified, as at the date of the site visit.”

8.	As it seems to me, Mr Marshall‑Williams’ point is a properly arguable one, and I am disposed to consider that it is also of some general importance as to whether a decision such as that made on 30 November can be supplemented by events happening at a view a few days later. Mr Marshall‑Williams tells me that there is no authority dealing clearly with such an issue and, bearing in mind the importance of this jurisdiction, I consider that the first ground of appeal merits the giving of permission for a second appeal.  

9.	The second ground of appeal, which I have summarised, proceeds on the basis that the first ground is wrong and that it was open to the review officer to take account of the assurance given at the site view on 5 November. Mr Marshall‑Williams submits that, taking the assurance at face value, it did not satisfy the criteria which I outlined in paragraph 27 of my judgment in Boreh, if only because of a lack of certainty. Again, that seems to me to be an arguable point. But whether it is one of sufficiently general importance to justify a second appeal is a different matter. As to that, Mr Marshall‑Williams points out correctly that the observations that I made in paragraph [27] of Boreh were in relation to a point that had not been the subject of argument, and he submits that it would be appropriate for the court now to deal with a like point in a context in which there will be argument as to the ambit of the principle. He says that it is a matter of importance that that opportunity should be taken. I am disposed to accept that the second ground, for those reasons, also surmounts the Part 52.13 hurdle, and accordingly I will give permission to appeal on both grounds of appeal.

Order:  Application granted on both grounds of the appeal