Trinity Housing Barrister Summary of Querino v Cambridge City Council (Rev1) [2024]

Trinity Chambers' Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Court of Appeal decision of Querino v Cambridge City Council (Rev1) [2024] EWCA Civ 314.

This was an appeal from a decision of HHJ Moloney KC relating to whether Cambridge City Council was justified in offering Mr Querino accommodation that had only one bedroom despite his wish for his children to stay overnight in his property.

The facts

Mr Querino formerly lived with his wife and their three daughters. In 2022, he sought assistance from the council on the basis he was homeless. Cambridge City Council (“the Council”) accepted that it owed him the main housing duty, and in July 2022 he was subsequently offered a flat.

The offer letter explained in part that the property was considered suitable as the children remained safe to reside at their mother’s house. The Council’s letting policy included a provision that children living between parents at separate addresses, will only be considered as having one main home unless there are exceptional circumstances. Moreover, even if there was a court order confirming residence between separated parents, that did not mean that the Council had to consider the child was part of a household for the purposes of a housing register application.

Mr Querino requested a review of the decision; the main thrust of his argument was that the flat was not suitable as he was seeking an additional bedroom to accommodate his children for whom he was seeking increased contact, including overnight stays, in ongoing family court proceedings. There was enclosed with his representations a report from Cafcass. The Cafcass reporter subsequently informed the Council that permission had not been in fact been granted to disclose that report and that its contents should be disregarded.

In November 2022, the reviewer concluded that the flat was suitable for Mr Querino. The decision noted that the children’s housing needs were met in the primary care of their mother and in any event the flat did not preclude the children from staying overnight. Further, the decision stated that the Family Court should not use a residence order as a means of putting pressure upon a local housing authority to allocate its resources in a particular way: Holmes-Moorhouse v Richmond Upon Thames LBC (2009).  In any event, a shared residence order would not be binding on the Council.

Mr Querino appealed to the County Court pursuant to s.204 of the Housing Act 1996. The judge allowed the appeal on three grounds:

i. The reviewer should have sent Mr Querino a “minded to” letter pursuant to regulation 7(2) of the Homelessness (Review Procedure etc.) Regulations 2018. The judge noted the potential importance of the Cafcass report and considered that it was likely had the reviewer sent a “minded to” letter, the Family Court would have consented to its use.

ii. The offer which the Council had made to Mr Querino had not complied with the requirements of section 193(7F) and (8) of the 1996 Act.

iii. The judge took the view that, in “shutting her eyes” to the Cafcass report, the reviewer had made a serious error of law, that the reviewer “was wrong to exclude the Cafcass report from its consideration, at least without applying to the Family Court for leave to use it”.

The Council appealed the judge’s decision.

Decision of the Court of Appeal

Lord Justice Newey gave the leading judgment, it was held that:

i. Whilst Regulation 7(2) can apply to an offer of suitable accommodation, in the present case, the simple fact that there was a Cafcass report on which the original decision-maker had not been aware did not give rise to a deficiency. There would have to be something further pointing to “exceptional” needs or circumstances before there would be good reason to conclude that there was a “deficiency”. It was held that no "minded to" letter was required in the circumstances of this case [35 & 38].

ii. In respect to the offer of the accommodation, the Council’s case was that the main housing duty came to an end under subsection (6)(c) as a result of Mr Querino accepting its offer. Subsections (7A), (7F) and (8) were not stated to apply in such a situation. Accordingly, where an offer under Part 6 has been accepted, it is not of significance that the offer was not made in writing, that it did not state that it was a final offer for the purposes of subsection (7) or that the housing authority was not satisfied that subsection (8) was not in point [47].

iii. The reviewer was correct in not having regard to the contents of the Cafcass report; this was confidential by virtue of section 12 of the Administration of Justice Act 1960 [26].

iv. Moreover, there was no necessity for the reviewer to also await any decision of the Family Court. Having regard to Holmes-Moorhouse and the Council’s own Policy, it was open to the reviewer to consider that it would have been appropriate to offer Mr Querino larger accommodation only if there were reason to think that there was something exceptional about the children’s needs or the circumstances, and the reviewer had no reason to think that there was. Accordingly, the appeal was unanimously allowed.