Our thanks to Garden Court chambers and Justine Compton for their note of this case.

Where a homeless application has requested a s.202 review of the local authority’s decision on duty, the authority has a power, but not an obligation to provide temporary accommodation. The same is true for accommodation pending appeal. The local authority must consider whether to exercise its discretion and do so in accordance with the criteria set out in R v Camden LBC exp. Mohammed (1997) 30 HLR 315, namely:

(a) the merits of the substantive case,

(b) whether there was new material on review that could effect the decision,

(c) the personal circumstances of the applicant.

In SN v LB Waltham Forest. 5 September 2016. Central London County Court, the issue was whether Waltham Forest had properly considered the third limb of the Mohammed test – the personal circumstances of the applicant and the consequences of a refusal to accommodate.

Ms SN had been found intentionally homeless for a second time after WF’s first decision was quashed on appeal. On three separate occasions, WF refused interim accommodation pending review and then appeal.

Waltham Forest argued that the merits part of the balancing act (‘limb 1’) was the overriding consideration and without merits the other factors were unlikely to outweigh an unmeritorious case.

The council also argued that it had recorded the personal circumstances and considered the medical evidence adequately, which complied with the Mohammed test. There was no need to go further and consider endless hypothetical scenarios.

HHJ Hand QC rejected the Council’s argument and found that:

1. There was no hierarchy in the Mohammed test, personal circumstances were capable of tipping the balance in an appellants favour regardless of the merits.
2. Local Authorities rarely accept that there are merits in an appeal and therefore the position urged upon him by the council would mean most pursuing an appeal would fall at the 1st Mohammed hurdle, which couldn’t be right.
3. All 3 decisions were unlawful as the consequences of a negative decision had not been properly considered despite the facts having been set out and reference being made to the evidence.
4. Whilst a Reviewing Officer did not have to write chapter and verse,  it had to properly consider what the real effect of its decision on this Appellant with her particular circumstances would be.

The Judge also went on to consider and make an order for accommodation pending appeal under s.204(4)(6) on the basis that a failure to acommodate would cause substantial prejudice to Ms SN’s ability to pursue an appeal, through the real possibility of Ms SN’s children going into care, affecting her ability to cope and potentially her legal aid.