London Borough of Waltham Forest v Saleh (2019) EWCA Civ 1944

The Court of Appeal on section 202 Housing Act 1996 reviews of suitability and what facts should be relevant at the time of review.

Mr Saleh was owed the full housing duty by Waltham Forest following a homeless application by Mr S for his household, including 6 children, in 2014. He was initially placed in emergency accommodation in Hackney, then in Romford. During this period Mr S’ daughter had started school in Romford. Mr S challenged the suitability of the Romford property in 2016, as overcrowded. WF accepted this and in 2017 offered Mr S temporary accommodation in LB Newham. Mr S accepted this but 6 months later requested a move on disability and health grounds.

Mr S’s daughter continued to go to her school in WF, but the trip to the school was now an hour each way. The daughter suffers from Type 1 diabetes, sometimes requiring hospital treatment and also episodes of incontinence during this journey to and from school.

WF decided that the Newham property remained suitable. Mr S requested a review, relying strongly on his daughter’s medical conditions, needs and the difficulty of the journey to school, but also stating:

I would like to bring to the attention of the [Council] the recent judgment from the Supreme Court of Nzolameso v City of Westminster … Under section 208(1) [of HA1996] the [Council] have a statutory duty to provide accommodation in their own area “so far as reasonably practicable.
We are instructed that no investigations were carried out to demonstrate any consideration of Mr Saleh’s household’s circumstances have been taken into account.

The review decision upheld the suitability decision, stating:

“… In March 2017, when you were offered accommodation within the Borough of Newham, [the Council] had both such policies in place. … The … policy which prevailed at the time you were offered 179 little Ilford Lane does not differ substantially from the current one. It listed groups of households who needed to be prioritised for in-Borough accommodation or close to Borough placement, inter alia those working in the Borough, those with one or more children on a child protection plan, or attending a special school as well as those with severe mental health problems or those with one or more children at a crucial stage of their education.
…
… The housing stock constraints described above are a highly relevant factor in assessing the suitability of … 179 Little Ilford Lane. It is my opinion that when this accommodation was offered to you the (Council) gave appropriate weight to your circumstances in particular the location of your children’s schools and your place of work. It is clear that by offering you accommodation near to its own Borough the (Council) gave you household priority over other households.”

The review decision did not consider whether, at the time of the review, any suitable accommodation was available within or closer to the Council’s district.

Mr S appealed. The s.204 county court appeal was successful on the basis that

The criticism of the Review Officer is that the test that has been applied is the test as to the availability of suitable accommodation, at the date the original offer of the accommodation was made. That is likely to be the appropriate time to apply the test in cases where an Appellant has refused the original offer of out-of-borough accommodation, but it is not the proper test where the offer has been accepted. Where an offer has been accepted, as it has in this case for whatever reason, the appropriate time at which the Review Officer has to consider the availability and suitability of out-of-borough alternative accommodation must be at the date of the review.

Grounds of appeal based on breach of s.8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and procedural unfairness were not upheld.

WF appealed on the ground that the finding that suitability (and the availability of closer accommodation) must be at the date of review was wrong. Mr S cross appealed on the 1996 Regulations and procedural unfairness decisions.

The Court of Appeal took into account the Homelessness (Suitability of Accommodation) (England) Order 2012, and part 17 of the 2018 Homelessness Code of Guidance for Local Authorities (v2), and noted:

It is apparent both from Article 2 of the 2012 Order and from (17.46)-(17.48) of the 2018 Code that where the local housing authority proposes to allocate accommodation outside its district in order to perform its s.193(2) duty, it must have regard both to the distance of the accommodation from the district and the effect on the links of members of the applicant’s household with schools and other services when assessing suitability. It seems to me that this will necessarily bring into focus as a relevant consideration the issue of whether other suitable accommodation may at the time of the decision be available either within or closer to the authority’s district and whether the existence of such accommodation means that the other accommodation is in those circumstances to be regarded as unsuitable even if, in the absence of other suitable accommodation, it could be said to meet the needs of the applicant and his or her family.

And the effect of the Supreme Court decision in Nzolameso v City of Westminster CC (2015) UKSC 22 (our post)

is that an applicant who is offered accommodation outside the authority’s district may seek a review of the decision on grounds of suitability even though a decision to exercise the power contained in s.208(2) is not included in the list of reviewable decisions under s.202. In exercising its powers under s.208 the authority is required to consider the issues of whether it is reasonably practicable to provide accommodation within the district and, if not, whether the available out-of-district accommodation is suitable. Whilst a challenge to a decision on the first of those issues may have to be brought by way of judicial review, the second is within s.202(1)(f) even though it involves an exercise of the s.208(2) power. All housing decisions made in order to comply with the duty under s.193(2) must involve the provision of accommodation which is suitable and s.202(1)(f) is comprehensive in its application to them.

This left the issue of suitability at what point in time. The 2018 Guidance made clear that suitability was a continuing duty. WF’s submissions that regard should be had to council resources such that consideration of suitability should be restricted to the point of the suitability decision got short shrift:

it is not possible to read (17.47)-(17.48) of the 2018 Code as limited in this way. Nor has the Council adduced any evidence to demonstrate that it would be impracticable or unduly difficult for the review officer to take into consideration the present state of available accommodation within its district.

There was precedent on this issue. Mohamed v Hammersmith and Fulham London Borough Council (2002) 1 AC 547, Omar v Westminster City Council (2008) HLR 36 (our report), Abed v City of Westminster (2011) EWCA Civ 1406 (our report), and Temur v Hackney LBC (2014) HLR 39 (our report) had all variously held that the facts relevant at review were those that pertained at the date of the review, not at the date of the original decision.

So

It seems to me that, consistently with these authorities, we should treat the obligation of the Council to review its decision to secure accommodation for Mr Saleh at 179 Little Ilford Lane as requiring it to reconsider that decision in the light of all material circumstances at the date of review including the availability of suitable accommodation either within or closer to its district and the school which his daughter attends.

Since it is common ground that the review officer did not do this, it follows that the judge was right to allow Mr Saleh’s appeal and to set her decision aside. I would therefore dismiss this appeal. In these circumstances, it is unnecessary to deal with the issues which arise on the respondent’s notice.

Comment

Well, at first sight this would blow a bit of a hole in Waltham Forest’s approach (which is not dissimilar to that of some other London Councils), that they can escape the ‘in borough’ location aspect of suitability by having a policy that restricts consideration of ‘in-borough’ accommodation to certain specified need groups. As it was put in the review letter:

The … policy which prevailed at the time you were offered (the Newham property) does not differ substantially from the current one. It listed groups of households who needed to be prioritised for in-Borough accommodation or close to Borough placement, inter alia those working in the Borough, those with one or more children on a child protection plan, or attending a special school as well as those with severe mental health problems or those with one or more children at a crucial stage of their education.

But, the Homelessness Code of Guidance has been amended again since v.2 – the relevant version for this judgment. Now, at 17.49, it states

Where it is not reasonably practicable to secure accommodation within district and an authority has secured accommodation outside their district, the housing authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the applicant has specified a preference, or the accommodation has been offered in accordance with a published policy which provides for fair and reasonable allocation of accommodation that is or may become available to applicants.

That last line may be a get out, to some extent. The question then is whether the council could simply rely on the original decision to offer that accommodation under their policy, or whether the council would have to show both that it had considered whether there was closer accommodation available at the date of subsequent suitability decision under the continuing duty, and also at date of review, and that at each point, there were homeless households with a greater need for that accommodation under the terms of their published policy. Given the continuing duty, I lean towards the latter.

I am slightly bemused about WF’s decision to appeal and the grounds advanced. ‘It is an intolerable administrative burden on local authorities to have to look at available properties again at review stage’ was surely never going to be a runner, given the case law, and particularly not when set against the very specific personal circumstances of a family in need. But there we are.