Homeless applicants have always faced a major problem if they refuse an offer of accommodation from a council which has accepted a duty to house them under Part 7 of the Housing Act 1996. The problem has been that if they refuse the offer then there is a risk that the council will be entitled to treat its duties towards them as discharged. This is turn means that the council will be entitled to refuse to make them any further offers of accommodation and evict them from their temporary accommodation. This is the equivalent of hitting a snake right at the end of a game of snakes and ladders and going back all the way to the beginning where the applicant is homeless but being unable to throw the dice again because the applicant will be deemed to have made themselves intentionally homeless by refusing an offer of suitable accommodation giving rise to the loss of their last accommodation.
There was always a possibility that the applicant might be able to successfully challenge the suitability of the offer of accommodation which they had refused by way of a review and all pursuant to Sections 202 and 204 of the Housing Act 1996. However, the risk was that if the review/appeal was unsuccessful and the decision that the accommodation was suitable could not be challenged then the applicant was left in the position outlined above and on the face of it facing street homelessness.
There were of course always safety nets to protect many applicants from becoming street homeless even if they have refused an offer of suitable accommodation. The most obvious being the duty of the local social services authority to provide assistance under Section 17 of the Children Act 1989 including assistance in obtaining accommodation for those applicants with children. Applicants without children whose medical conditions were such that they required looking after under the Care Act 2014 might still be entitled to accommodation pursuant to that Act. This left applicants without children who had been found to be vulnerable but might not have Care Act needs in a particularly difficult situation.
The recent decision in the Court of Appeal in the case of Bromley v Broderick (B5/2019/0293) highlights a further problem for those who refuse offers of accommodation. This being that the applicant is not entitled to ask the council to consider what accommodation might be available at the date when a review is completed for the purposes of deciding whether the accommodation which was offered was suitable. This is because where an applicant has refused an offer of accommodation a council is entitled to treat their duties as discharged and need not considered the suitability of any other accommodation for the applicant. Where the applicant has not refused the offer then the duty is not discharged and the local authority is obliged to consider at the date of the review whether there are any other suitable properties available for the applicant which would mean that the accommodation which was originally offered to them is unsuitable. The case is considered in more detail at Nearly Legal and on the Cornerstone Chambers Website.
Because of the original problem of the risk of street homelessness I have always had to advise clients to accept offers of accommodation even if they were adamant that they did not want to live in the property. It might be possible to confidently advise people to refuse an offer if the accommodation was so obviously unsuitable for them that it could never be found to be suitable. An example might be where somebody in a wheelchair was offered a property which had no lift and which required them to climb a number of stairs to gain access. In situations where the unsuitability was not so obvious the client had to be advised that they should accept the offer even though it meant that they were at risk of paying 2 lots of rent. They could also be advised that they didn’t have to move into the new property whilst they requested a review and that it might take the council some time to evict them from their temporary accommodation.
Clients understandably often take some persuading that they should accept an offer of accommodation which they do not wish to accept. Making them aware of the dire consequences of refusing an offer sometimes works. Often though, the applicant has already refused the offer by the time they consult me.
As a result of the above risks I have prepared the following set text which I advise anybody dealing with challenges of the suitability to include in advice letters or emails sent to applicants who are considering whether or not to accept an offer of accommodation which they have received from a local authority. It is important that any such advice is confirmed in writing:
A key point to remember is not to refuse any offers of accommodation which you receive even if you are unhappy with the property which has been offered. Instead you should accept the offer and request a review of the decision pursuant to Section 202 of the Housing Act 1996. I can assist you with this if necessary. I can then make representations in support of the review which may lead to the council withdrawing the offer. Alternatively the council may uphold the decision that the accommodation is suitable for you. It may be possible to challenge this by way of an appeal to the County Court under Section 204 of the Housing Act 1996 if it can be shown that the council have made an error of law in reaching the decision.
If you do not refuse the offer of accommodation then the council can consider whether there is more suitable accommodation available for you at the date when the review is completed. There is no guarantee that they will do so but it is certain that if you refuse the offer they do not have to do so. The effect of you refusing an offer is that the council will treat their duties towards you as having ended.
Additionally, you refuse an offer of accommodation and the council later uphold the decision that it was suitable for you they are then entitled to treat their duties towards you as discharged. This means that they will not make any further offers and will evict you from your temporary accommodation. I have been consulted by a number of people who have made the mistake of refusing offers of accommodation without realising the very serious implications of doing so until it is too late. I am therefore setting out this advice to you in detail so that you do not make the same mistake.
As a final thought I don’t think that having the right to have suitability considered at the date of a review makes very much difference in practice. It seems to me that a well-worded review decision letter will be difficult to challenge even if the offer had been accepted. The only real benefit is that an applicant who has not refused an offer may be able to take advantage of a change in the available housing stock between the date of the original offer and the date of the review. If a property has become available which would be more suitable for them than the property which they were originally offered and the council let them know about it then if they haven’t refused the first offer they can accept it whereas those who have refused the first offer cannot do so.