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Requirements for private sector offers in discharge of duty


Norton v London Borough of Haringey (2022) EWCA Civ 1340

A second appeal from a section 204 appeal of Haringey’s decision to discharge homeless duty following a private rented sector offer (PRSO).

There were three issues in the appeal.

Haringey’s letter to Mr N setting out the PRSO contained the following

The Council referred to the duty imposed by section 193(2). The Council said that the offer was made to bring that legal duty to an end and that it was ‘the only and final offer of accommodation we will make to you’. A would be given an opportunity to view property 2 before he signed the tenancy agreement. The Council stressed how important it was for him to look at property 2. The offer also told A that if he refused the offer the housing duty would end. The Council would close his application and remove his name from its waiting list. He would not be entitled to bid for further properties.

The offer also said

‘If you become homeless within two years of the date, you accepted our offer, and you then re-apply to us for housing:
If we find that you have become homeless through no fault of your own we will, whether or not you still have a priority need, accept a further housing duty, and offer you somewhere to live. This would almost certainly be an offer of another tenancy with a private landlord.
If however, we find that you have become homeless or threatened with homelessness because of something you did or failed to do, (that is, you have made yourself homeless intentionally) we wrong in law then have to consider all aspects of your situation, including whether you still have a priority need and will take a fresh decision on the basis of our then findings.’

Mr N argued that this did not adequately inform Mr N of the ‘effect under section 195A Housing Act 1996 of a further application’ within two years of the current application.’ as it did not include the effect of s.195A(2) in full.

Section 195A is headed ‘Re-application after [PRSO]’. If within two years of accepting an offer under section 193(7AA) the applicant re-applies for accommodation, or for assistance in getting accommodation, and the LHA are satisfied that he is homeless and eligible for assistance, and are not satisfied that he became homeless intentionally, the duty imposed by section 193(2) applies whether or not he has a priority need (section 195A(1)). Section 195A(2) provides that ‘For the purpose of subsection (1), an applicant in respect of whom a valid notice under section 21 of the Housing Act 1988 (orders for possession on the expiry or termination of an assured shorthold tenancy) has been served is treated is to be treated as homeless from the date on which that notice expires’. If the application which immediately preceded the current application was an application to which section 195A(1) applied, section 195A(1) does not apply (section 195A(6)). In other words, he may make a further application, but for the duty to apply to him, he would also need to show that he was in priority need.

The Court of Appeal held that s.195A(2) had to be included under ‘the effect of s.195A on a further application’. As it was common ground that Haringey’s letter had not done so, the appeal was allowed on this ground.

Secondly, Mr N argued that the council had not satisfied itself as required under 193(7F)(ab) – specifically that ff the applicant is under ‘contractual or other obligations in respect of his existing accommodation’, he is ‘able to bring those obligations to an end before being required to take up’ the PRSO.

Mr N’s temporary accommodation under s.193 required seven days notice to end it. Haringey were aware of this. However, the offer made no reference to when the PRSO tenancy would start and there was no indication that the Council had Mr N’s required notice period in mind.

The Council could not, therefore, have been satisfied, on 8 January 2021, that section 193(8) did not apply to A, and was therefore prohibited by section 193(7F)(ab) from approving the offer as a PRSO.

Appeal allowed on this ground also.

Thirdly, Mr N argued that there was no evidence that Haringey had satisfied itself as to the condition of the property, as required (in negative wording) by the Homelessness (Suitability of Accommodation) (England) Order 2012 (2012 SI No 2601)

The Court of Appeal held:

Article 3(1)(a) of the Order read with article 3(2) provides that accommodation shall not be regarded as suitable for the purposes of approving a PRSO under section 193(7F) if the LHA ‘are of the view that the accommodation is not in a reasonable physical condition’. This provision is expressed in a negative way, but as a decision maker governed by public law, the LHA cannot form the view referred to in article 3(1)(a) before approving a PRSO unless it investigates the condition of the property before any approval. The Council could not form that view without, either, inspecting property 2 themselves, or being supplied with a report about it from a reliable source. There is no evidence before this Court, and there was none before the Judge, that the Council had taken any such step on or before 8 January 2021.

Appeal allowed on this ground as well.

As to remedy, the decision to approve the PRSO was ultra vires and void. The decision to end duty was also therefore quashed and the s.193(2) duty continued.

As Males LJ puts it in a concurring judgment

This appeal illustrates what is already well known, that housing law can be highly complex. More specifically, it demonstrates that local authorities who wish to discharge their housing duty by the provision of an assured shorthold tenancy with a private landlord must take care to ensure scrupulous compliance with the terms of section 193 of the 1996 Act.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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