R on the application of SH v Waltham Forest LB

Facts of the case

SH travelled to the UK in 2012 having fled trafficking for the purposes of sexual exploitation. She was granted refugee status in 2014.

She applied to WF as homeless in September 2014. WF accepted the main housing duty and after was eventually provided with permanent accommodation in Ilford in May 2016.

In May 2017, SH was served with a no-fault eviction notice requiring her to vacate the property.

In August 2017, SH was offered and accepted a property in Tottenham. SH and her daughter had considerable issues with the property, in particular the fact that the communal grounds to the flat being used as an open air brothel where sexual activity could be seen by SH and her daughter. Evidence from the school and a psychiatrist’s report had provided evidence on the effect on SH’s mental health and her daughter’s development.

In July 2017, SH approached WF asserting that she was homeless.

In October 2018 WF made an offer of a property in Kettering under section 189B(2) in discharge of its relief duty.

SH refused the offer.

The issue in dispute

The issue before the court was whether this was a re-application by SH, in which the main duty under section 193(2) was still owed, or whether it was a fresh homelessness application, in which case the ‘lesser’ duty under section 189B(2) (to take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months) was owed and had then been discharged once SH refused the offer.

Central to this issue was whether the offers of the properties in Ilford and Tottenham were made in accordance with the provisions relating to private rented sector offers, contained in section 193 (7AA) and (AB) of the Act.

The Law

The section 193 duty can be discharged under section 193(7AA) of the 1996 Act if the applicant, having been informed in writing of the matters mentioned in section 193 (7AB) accepts or refuses a PRS offer.

Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met:

There has to be an offer of a property in writing, which warns the applicant of the matters in section 193(7AB), namely:

  • The possible consequences of refusal or acceptance of the offer;
  • The right to request a review of suitability;
  • The effect under section 195A of a further application to an authority within 2 years of acceptance of the offer.

In addition, the property has to comply with the conditions in section 193 (7AC) namely,

  • It has to be an AST for a fixed term of at least 12 months,
  • It has to be made with the approval of the authority in pursuance of arrangements made by the authority with a view to bringing the authority’s duty to an end.
  • The authority has to be satisfied that the property is suitable (section 193 (7F).

The Court’s decision

Given that WF could not produce a copy of the offer letter, the court concluded that the offer letter for the Ilford property had not been sent and therefore that the offer did not comply with section 193 (7AA) and (7AB) of the Act and that therefore the duty under section 193(2) was not discharged in May 2015.

In terms of the Tottenham property, the court found that the property was never suitable accommodation. The court stated that given the particular characteristics of SH and her daughter, the offer should never have been made. It therefore concluded that as the Tottenham offer did not meet the statutory requirements of section 193 (7AA) and (7AB) and that therefore the duty under section 193(2) was not discharged in August 2016.

The court decided that section 189B(2) did not apply to AH because she was still owed the section 193(2) duty following her original application in 2015. The application made in July 2018 was not a fresh application. By regulation 4 of the Homelessness Reduction Act Regulations 2018/167, the amendments made do not apply in relation to an application for assistance made under section 183 of the Housing Act 1996 before the 3rd April 2018.

Learning Points for Advisers

Most advisers will be aware that the Localism Act 2011 allowed for local authorities to discharge their main housing duty by offering an assured shorthold tenancy in the private sector for at least 12 months.

This decision illustrates the importance for advisers of checking that a PRS offer made in discharge of the main housing duty has been validly made, not only in terms of the suitability of the accommodation but also by checking that the contents of any offer letter meet the requirements of 7(AB).

This will be particularly relevant in cases, as with the above case, where applicants have been evicted from a PRS property offered before the 3rd April 2018 and are now re-applying as homeless to the local authority.