Duty to House is Extinguished when Alternative is Declined


08 January, 2009

The duty of a Housing Authority (HA) to provide accommodation under the Housing Act 1996 is discharged when its offer of alternative property to a family, whom had outgrown their current house, was declined as held in the recent case of Muhubo Mohammed Muse v Brent London Borough Council [2008] EWCA Civ 1477. This rejection did not permit the family to choose between their current and proposed accommodation.

Facts of the Case

The LA had originally accepted a duty to house the family and had managed to obtain a tenancy for them with a registered social landlord. However, this became overcrowded because Muse (M) had more children and she eventually requested a transfer to another property. The LA repeatedly offered M alternatives which they felt were more suitable to her needs, but made it clear that M would lose her current accommodation if she did not accept one of these other options. Such alternatives were constantly turned down by M.

As a consequence, the LA believed that its duty to house M had been discharged because of her refusals and informed M of their intention to evict her from the current accommodation. This view was confirmed by the LA's reviewing officer who considered that M had been properly informed of the potential repercussions of not accepting any such offer made by the LA.

However, it was held by the County Court that the LA's duty had not been discharged because when M made her application to transfer property, she had been residing in a home during that time and therefore could not be considered as intentionally homeless or in a priority need. It was their view that it was reasonable for M to remain in her current property.

The Appeal

The LA appealed to the Court of Appeal on a number of issues. Firstly, they claimed that the Judge had been wrong to hold that there was no such duty on their part, under the Housing Act 1996. They also stated that the Judge was wrong to find that the LA should have given M a choice between her present home and a new property. Finally, they said that as soon as they became aware of the unsatisfactory nature of M's present home, they were obliged under the Act to offer her a more suitable living space and if this was refused, its duty to her ended. In her contentions, M said that upon her receiving her request for a transfer, the LA should have made her fully aware of the implications upon her current tenancy and should have issued a relevant notice in compliance with the Act.

In its judgment, the Court of Appeal ruled in favour of the LA. They held that the LA had indeed been obliged to offer M suitable alternative accommodation, given her changing needs. It had done this in compliance with the Act and these proposals had been on the understanding that their duty would be ended if the alternatives were turned down. The Court was of the view that if the County Court's verdict was to be continued, there would be an extraordinary situation where a tenant could claim to be homeless and therefore owed a housing duty, but that they were not homeless when they made an application for a transfer.

They also considered that M had not suffered any prejudice from any alleged non-compliance with the Act, as it was arguably reasonable to infer that M knew that the LA accepted her present accommodation was unsuitable and this was why they were trying to re-house her. The Court held that M could have withdrawn her request to transfer and waived the performance by the LA of its duties. This would have consequently entitled her to remain in her current property and remained an individual to whom a housing duty was owed.

In obiter, the Court also said that the LA had no legal right to instruct M's landlord to obtain a court order for legal possession of the property. Instead, the correct position is that the LA should inform the relevant landlord of the discharging of the housing duty owed to the tenant and advised them that any housing benefit would be paid at a lower rate. It would then be for the landlord to consider their position with regards to the future residence of the tenant.


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