CA-2024-002185 - [2025] EWCA Civ 1049

By letter dated 24 May 2023, a local law centre acting on behalf of the appellant wrote to the respondent requesting a review of the suitability of the studio flat that was being provided to the appellant. That letter indicated that the appellant was living in the studio flat with her son, and was now pregnant and expecting to give birth to her second child in September 2023. The letter set out arguments as to why the existing accommodation was unsuitable and did not meet the requirements of section 193(2) of the 1996 Act.

By e-mail dated 16 June 2023, a housing officer (not one who had previously dealt with the appellant’s case) replied saying that he had been advised that the appellant “is already on the transfer list in recognition of the fact that the property is overcrowded so a review would be academic”.

The judge accepted that the housing officer concerned had made a mistake in his response. The appellant was on the transfer list because the property was said to be overcrowded, not because that overcrowding led to the accommodation being unsuitable. A review would not therefore have been academic: it would have determined whether the accommodation occupied by the appellant and her son was unsuitable for the purposes of section 193(2) of the 1996 Act.

In view of the fact that the appellant had given up the opportunity for a review of the suitability of the accommodation because of an error on the respondent’s part, the respondent conceded that the accommodation was unsuitable for the purpose of meeting the duty owed to the appellant under section 193(2) from 16 June 2023 onwards. As it was put by Shamir Ahmed, an operations manager, housing management and procurement, in a witness statement filed on 19 January 2024, given that an error had been made by the respondent, and the appellant had given up her right to a review, “it is now only fair that the issue of suitability should be decided as having been resolved in her favour from this date”.

Although not relevant to the outcome of this appeal, I note one further matter. The respondent’s view, as explained by Shamir Ahmed, is that the accommodation was suitable under the relevant housing standards for 2 persons and was, in fact being occupied by the appellant and her 1 year old child. The respondent did not consider that it met the test for being statutorily overcrowded and was not unsuitable. Normally, the suitability of the accommodation would have been considered by a review under section 202 or an appeal to the county court under section 204. That did not happen. The judge did, however, consider that issue. He considered that the criticisms made in the letter from the law centre sent on 24 May 2023 “were as valid in October 2022 as in June 2023”. However, the fact that the respondent accepted in June 2023 that the accommodation was unsuitable was because it had failed to provide her with an opportunity for a review, not because it accepted that the criticisms in the May 2023 letter were correct and showed the accommodation to be unsuitable. It is not necessary for the purpose of this appeal to consider the correctness of the judge’s conclusion on this issue and there is no respondent’s notice raising this point. I would not, however, want it to be assumed that the accommodation in this case was unsuitable. That issue can be decided in cases where it arises, preferably in the context of an appeal under section 204 of the 1996 Act.