House Cannot Become Retrospectively Suitable

In a recent Court of Appeal case, the judges ruled that a proposed council property could not be deemed retrospectively suitable for a tenant.

Mrs Basra Boreh became homeless when her landlord repossessed the accommodation she was occupying. She applied to her local authority, Ealing London Borough Council, for housing. There was no question that she required urgent housing and was a priority need, especially considering her numerous medical conditions, which included arthritis, diabetes, osteoporosis and possible heart disease. She also used a wheelchair and could not stand unaided for more than two minutes.

The Council had offered her a property but she considered it to be unsuitable for her needs and had therefore declined the offer. It then wrote to Mrs Boreh, on 12 March 2007, restating its position that the house was suitable for her and advising her of her right to request a review within 21 days, which she duly did. The conclusion of the review was given on 13 July 2007. It was that the house would be deemed suitable if necessary alterations were made. Up until this point no mention had been made of alterations to the property.

Mrs Boreh was dissatisfied with this decision and, relying on Section 204 of the Housing Act 1996, exercised her right of appeal to the County Court. The Recorder in the County Court was faced with the decision as to whether or not the conclusion of the review, dated 13 July, was lawful in upholding the local authority’s earlier decision of 12 March. The Recorder found that an offer could be found acceptable even if the original offer did not state all the changes that needed to be made to the property. The suitability of accommodation was not to be judged exclusively by reference to its condition at the time of the offer. Mrs Boreh appealed. The Court of Appeal upheld this part of the judgment of the County Court.

However, the Court of Appeal judged that the job of the reviewer was to reach a decision as to whether the offer was suitable taking into account any alterations to the property that had subsequently been proposed up to the time of the review. In simple terms, this is a yes or no answer. So, when the reviewer stated that the house would be suitable following alterations, he was finding the property retrospectively suitable, which was not the correct procedure.

In the opinion of Lord Justice Rimer, both the reviewer and the Recorder had failed to make the distinction between the local authority offering a house and at the same time suggesting acceptable changes (thus the housing being deemed suitable once the adaptations had been made) and the local authority deeming it suitable and the review officer saying it could be, but only if necessary changes were made. An offer to make changes to a house in order to make it suitable for a council tenant must be made prior to the review process.

The Court of Appeal therefore found that the Council had not discharged its duty towards Mrs Boreh as it had yet to find her suitable accommodation.

Boreh v Ealing London Borough Council [2008] EWCA Civ 1176. See http://www.lawreports.co.uk/WLRD/2008/CACiv/oct1.3.htm.

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