Nikolaeva v London Borough of Redbridge [2020] EWCA Civ 1586

On 17 May 2017 the Respondent wrote to the Appellant in terms that it had nominated her to a housing association property on which she had placed a bid. The Respondent advised that if the nomination was successful and she was offered the property that offer would constitute a final offer of accommodation for the purpose of s.193. The Appellant viewed the property on 8 June 2017, and on 29 June 2017 she attended a meeting with the housing association during which she was presented with a letter offering her a six-year fixed term assured shorthold tenancy. The offer was made subject to her accepting and signing a tenancy agreement. On 30 June 2017 an officer from the housing association wrote to the Respondent authority and advised that the Appellant had refused to complete sign up. On 3 July 2017 the Appellant wrote to the Respondent 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 7 July 2017 the Appellant attended a meeting at the Respondent’s office. Later the same day, the Respondent wrote to the Appellant stating that as she had refused a final offer of accommodation that was suitable and reasonable for her to occupy, it considered that its duty under s.193 had been discharged. The Appellant unsuccessfully sought a review of that decision under s.202 of the Act and subsequently appealed to the county court under s.204. On 9 December 2019 HHJ Luba QC dismissed the Appellant’s appeal. The Appellant appealed to the Court of Appeal. The appeal The appeal was brought on two grounds. First, it was said that the review decision ought to have been set aside because it was based on a finding that the Appellant had refused an offer of accommodation made by the Respondent on 4 July 2017, which was irrational and contrary to the evidence. To the extent that the judge concluded that the review decision should, nevertheless, stand because the Appellant had been given reasonable opportunity to consider the offer by 29 June 2017 and/or the reviewing officer had made a clear finding to that effect, the judge’s conclusions were contrary to the evidence. Secondly, it was said that the judge erred in concluding that there was no requirement on the reviewing officer to consider whether the accommodation had still been available for the Appellant on 4 July 2017. The judge distinguished between the offer of accommodation made by the Respondent and the offer of a tenancy made by the proposed landlord and in doing so, it was said that he misdirected himself as to the requirements of s.193(7). It was said that the acceptance or refusal of an offer of accommodation can only lead to the cessation of the housing duty if the accommodation is still available so that acceptance of the offer would result in an assured or secure tenancy. Judgment Delivering the lead judgement, Asplin LJ noted that the review decision was “at times inaccurate, confusing, hopelessly unclear and the logic is difficult to follow”. She went on to say that the structure of a review decision should leave the person to whom the housing duty is allegedly owed and the local housing authority which allegedly owes it, in no doubt about the reasoning which has led the

reviewing officer to his conclusions [42]. She also held that, contrary to the Respondent’s position, where the accommodation is to be provided by a third party, a mere allocation by way of nomination is not “a final offer of accommodation” under the Act. It would make a mockery of the main housing duty, if it were satisfied potentially without the actual offer of suitable accommodation [49]. However, on the present facts the final offer of accommodation, and the consequences of refusal, were conditional on accommodation actually being offered by the housing association [67]. On the first ground of appeal the Court held that, read as a whole, the review officer rightly concluded that the Appellant’s refusal of the accommodation was continuous from 29 June to 4 July 2017. There was nothing irrational about the conclusions reached [58] and, in fact, it was the only conclusion that could rationally have been reached [62]. As to the second ground of appeal, there was no evidence that the property was not available on 4 July 2017 or at any relevant time [68]. Again the review decision was the only decision which could rationally have been reached [69].

Summary by Alice Richardson, barrister, Trinity Chambers.

For the judgment, click here.