Zaman v London Borough of Waltham Forest and Uduezue v Bexley LBC (2023) EWCA Civ 322

These were two joined second appeals from section 204 appeals, both on the issue of whether the local authorities had lawfully discharged duty following decisions that ‘out of borough’ private sector accommodation was suitable for the applicants. In Zaman, the central issue was how far Waltham Forest was obliged to try to find the closest accommodation to the borough that it could. In Uduezue, the appeal eventually turned on whether Bexley had complied with its obligations under s.193(7AB) Housing Act 1996.

On Uduezue, I am very grateful for a note by Daniel Grütters of One Pump Court, who acted for Ms Uduezue. That follows my note on Zaman.

Zaman v Waltham Forest LBC

Waltham had accepted that it owed Ms Zaman the full housing duty in October 2020. The household consisted of Ms Zaman and her three children (8, 7 and 4). In July 2021, Waltham wrote to Ms Zaman that it proposed to discharge the housing duty by way of a private rented offer of a 3 bedroom maisonette on Stoke on Trent, some three hours away. Ms Zaman refused the offer and requested a review. Her solicitor pointed out Ms Zaman was

“an informal carer for her mother who lives locally”, her children were settled at a local primary school, she required support from her sister and mother to help with childcare which “cannot be replaced in Stoke on Trent” and she was concerned that she might suffer racism or discrimination in Stoke-on-Trent.

And added

“The Council will be aware that, where it is considering making an offer of accommodation out of borough, it is under an obligation to seek to secure accommodation as close as possible to its local area – see s.208 Housing Act 1996 and the case of Nzolameso v Westminster City Council (2015) UKSC 22; (2015) HLR 22.

Our client’s housing file tellingly contains no evidence that the Council sought accommodation any closer than Stoke on Trent. It is unclear whether efforts were made to secure accommodation in borough, or alternatively in a neighbouring borough or indeed in the whole of Greater London. It is difficult to imagine that, had such efforts been made, the Council would have been unable to find a suitable property in that entire area. Even if that were so, it simply defies logic that the Council could not secure accommodation closer than approximately three hours away in Stoke on Trent.”

The review officer issued a ‘minded to’ letter, upholding suitability and saying

“122. I have demonstrated above why you were not provided with a Zone A property or a property in London. This is because there were no properties that were available and suitable for your household apart from the property that was offered to you in Stoke On Trent.
123. In line with our Policy, the property offered at 65 Longshaw Street … was the only property available at the point of offer and this was an appropriate offer for you and your household. As is demonstrated, there was no other 3-bedroom property available to us in London or near London.

Ms Zaman’s solicitor responded:

“[W]e submit that the Council has unlawfully adopted a policy of rehousing homeless households in Stoke-on-Trent, presumably via a supply agreement with a housing provider in that area. This is evident from the fact that over the past two financial years, the Council has rehoused 121 homeless households in Stoke-on-Trent (as per the enclosed FOI response).

We submit that it is unlikely in the extreme that on at least 121 occasions, the Council was unable to secure a property closer to the borough than Stoke-on-Trent. While we would accept that it would not be possible for the Council to check every town and city in between, it was required as a bare minimum to seek to secure and/or procure properties within its Zone B, in accordance with the Council’s own policies.

It follows that the Council cannot have been satisfied that the property offered to our client was suitable”

“We submit that the Council has failed to comply with its Accommodation Acquisitions Policy, including as follows.

The Council has not provided any evidence that the relevant acquisitions process has been followed under section 6.0.

Additionally, we submit that the Council has failed to secure adequate numbers of properties in borough and/or near the borough, and/or that the Acquisitions Policy is inadequate in providing that such properties will be secured.”

The review decision barely dealt with this, stating:

“140. I am awfully confused with your Solicitor’s responses to the Minded To letter because he is challenging the Council’s policies however, in hindsight, this does not fall within this particular review. In any event, it is manifestly clear that there is nothing unlawful about the arrangement in the way this Council has procured their properties. It is common knowledge that the Council have shortages of in borough units and that units need to be procured outside of its area and it is not unlawful for accommodation to be provided outside of the district because of the cost and pressure of resources which are relevant considerations that need to be taken into account particularly when the Council need to meet the needs of homeless people or those threatened with homelessness, at an appropriate cost.
141. It is correct for me to remind you that this review is in regard to the suitability of accommodation offered in Stoke On Trent and not the method of procurement or the method of any procurement having any material impact on its suitability. As a result, the submission made by your Solicitor needs no further scrutiny.”

Ms Zaman appealed to the County Court, and, following the dismissal of that appeal, to the Court of Appeal.

The central issue was whether it was incumbent on Waltham Forest to secure accommodation as close as possible to Ms Zaman’s borough and whether Waltham Forest was in breach of its own policy in failing to do so.

Ms Zaman argued that following Nzolameso (our note) and the supplementary statutory guidance, accommodation should be secured as close as possible. Further, Waltham had “both a “Private Rented Sector Offer Policy”, setting out principles on which PRSO accommodation should be offered, and an “Accommodation Acquisitions Policy”, “setting out the Council’s policy for the acquisition of privately owned properties for use as accommodation for households towards whom a duty to secure accommodation has been accepted under the Housing Act 1996””. These stated

“all properties procured under the policy will be as close to the borough as is reasonably practicable, given the financial constraints within which the service operates and the practical difficulties which can prevent units being procured in the borough or nearby locations”

This had not been followed, given the numbers of people in 2020/21 being sent to Stoke on Trent.

Waltham Forest argued that the statutory Code of Guidance which cam out after Nzolameso said something different to the previous supplemental guidance

paragraph 17.50 of the Code says that such accommodation 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, Mr Grundy argued, shows that accommodation that is not as close as possible to the local housing authority’s district may be offered if that is “in accordance with a published policy which provides for fair and reasonable allocation of accommodation that is or may become available to applicants”.

This. Waltham argued, meant that

the council must, so far as “reasonably practicable”, secure accommodation in the borough (i.e. Zone A) and, failing that, should “[g]enerally, where possible”, try to offer accommodation in Zone B so that the applicant could retain established links. Where, however, accommodation could be supplied only in Zone C, there was not the same need for it to be as close as possible to where the applicant had been living. In particular, it sufficed that accommodation was offered “in accordance with a published policy which provides for fair and reasonable allocation of accommodation that is or may become available”. At one stage, Mr Grundy suggested that, if a policy provided for Zone C accommodation to be provided exclusively in Penzance, there could be no complaint about offers being made in line that that policy.

The Court of Appeal was not impressed.

It will, I imagine, have been with Baroness Hale’s remarks in mind that the second sentence of what is now paragraph 17.50 of the Code was altered. I do not think, however, that the change serves to excuse local housing authorities from seeking to provide accommodation as near as possible to their districts.

And then, on whether Waltham had implemented its own policy, the Court of Appeal found this situation was more akin to Abdikadir v London Borough of Ealing (2022) EWCA Civ 979 (our note) than Alibkhiet v London Borough of Brent v City of Westminster (2018) EWCA Civ 2742, in that the issue was a lack of evience in following the policy, rather the terms of the policy itself.

There was nothing wrong with Waltham’s Forest’s “Accommodation Acquisitions Policy”, but there is a dearth of evidence to show that it was followed, and common sense rather suggests that it was not. Mr Bernardi said in his submissions of 15 September 2021 that Ms Zaman’s housing file “tellingly contains no evidence that the Council sought accommodation any closer than Stoke on Trent” and that it “simply defies logic that the Council could not secure accommodation closer than approximately three hours away in Stoke on Trent”. In further submissions of 29 October, Mr Bernardi submitted that “the Council has unlawfully adopted a policy of rehousing homeless households in Stoke-on-Trent”, that “it is unlikely in the extreme that on at least 121 occasions, the Council was unable to secure a property closer to the borough than Stoke-on-Trent” and that “the Council has failed to comply with its Accommodation Acquisitions Policy”. No adequate response is to be found in the decision letter of 12 November. Ms Bhatt said that it was “common knowledge that … units need to be procured outside of [the Council’s] area” and that “this review is in regard to the suitability of accommodation offered in Stoke On Trent and not the method of procurement or the method of any procurement having any material impact on its suitability”. She did not confirm that Waltham Forest had been seeking to ensure that Zone C properties were “as close to the borough as is reasonably practicable”, in accordance with the “Accommodation Acquisitions Policy”, or offer any explanation for the fact so many Zone C properties were in Stoke-on-Trent when common sense indicates that it should normally have been possible to obtain accommodation closer to the borough, for example in “the major metropolitan locations” in the West Midlands to which Brent had resorted in Alibkhiet. Nor is any sufficient reason for property having been unavailable any closer than Stoke-on-Trent to be found in Ms Bhatt’s witness statement. Ms Bhatt there recounted that the manager of the Procurement Team had “confirmed that when the team go out to procure properties, they seek to procure in all locations including Essex, Hertfordshire, Kent, Surrey, Berkshire and Buckinghamshire and do not limit their procuring to certain locations only”. Strikingly, Ms Bhatt did not say that the Procurement Team prioritised properties closer to the borough or give any reason for so many Zone C properties being as far away as Stoke-on-Trent.

In short, while Waltham Forest’s “Accommodation Acquisitions Policy” was lawful, it is not apparent that it was duly implemented or, therefore, that 65 Longshaw Street was the closest property to the borough that the council could secure.

Appeal allowed.

Uduezue v Bexley LBC

Ms Uduezue had approached Bexley for homelessness assistance and the latter subsequently accepted it owed her the ‘main housing duty’, pursuant to s.193(2) of the Housing Act 1996. She was placed in temporary accommodation inside the borough and moved several times, including some weeks after she gave birth to her third daughter.

Bexley then made her what it claimed was a ‘private rented sector offer of accommodation’ for a three-bedroom property outside the borough in Chatham, Kent. Ms Uduezue rejected to that offer due to the property’s location, which was 20 miles from their home, support network and, crucially, her eldest daughter’s school. This was particularly important because she was preparing for the 11+ exams in order to gain a place in a coveted grammar school inside the borough.

Bexley acknowledged Ms Udeuzue’s objections but considered the accommodation was nevertheless suitable. It therefore concluded that, pursuant to s.193(7AA), it had discharged its duty towards her and told her to vacate the temporary accommodation. She subsequently requested a review, which upheld Bexley’s decisions. She then appealed the review decision to the county court, where it was dismissed by HHJ Saggerson.

The Court of Appeal granted Ms Uduezue permission to appeal that decision on three grounds. The first ground complained about the failure of Bexley to offer her in-borough accommodation, where – unbeknownst to her at the time of the offer – multiple two-bedroom properties were available. In dismissing this ground, Newey LJ – with whom Asplin and Davies LLJ agreed – found that it was not perverse for Bexley to consider a two-bedroom property unsuitable where Ms Uduezue was entitled to a three-bedroom property under its allocation policy (pursuant to Part VI – not VII – of the 1996 Act). Newey LJ noted that if Ms Uduezue had expressed a willingness to move to a two-bedroom property, Bexley might have taken a different view.

The second ground challenged Bexley’s failure to conduct inquiries into the impact on Ms Udezue’s eldest daughter and her education. In dismissing this ground also, Newey LJ held at (68) that Ms Uduezue’s concerns “did not obviously raise any point that called for additional investigation” and that it was not clear what speaking to her school might have added. The Court did not deal with the point that s.11 of the Children Act 2004 placed a positive duty on Bexley to conduct inquiries, similar to the positive duty which arises under equality law (see Pieretti v Enfield LBC (2010) EWCA Civ 1104) (NL note).

The third ground raised a technical point that since the offer of the property in Chatham was made by Bexley, and not by a private rented sector landlord, it did not meet the definition of a ‘private rented sector offer of accommodation’, as defined by the 1996 Act. Newey LJ also dismissed this ground, on the basis that the offer was communicated by Bexley and he refused to read a requirement into 1996 Act for the landlord making the offer to be identified.

Following the grant of permission to appeal, Ms Udeuzue had applied for permission to add a new, fourth ground of appeal. That ground relied on a finding by the Court of Appeal in Norton v Haringey LBC (2022) EWCA Civ 1340, (NL note) which post-dated both her appeal before HHJ Saggerson and her subsequent application for permission to appeal him. In Norton, the Court of Appeal considered the technical requirements of the discharge of the main housing duty when a ‘private rented sector offer of accommodation’ had been made. It had held that the failure to inform an applicant in writing of the matters listed in s.193(7AB) ,  prevented the duty from being discharged, even if that failure was practically inconsequential.

Bexley accepted that it had failed to comply with s.193(7AB) but invited the Court of Appeal to refuse Ms Uduezue permission to rely on a new ground of appeal. Bexley argued that each ground of appeal before the Court of Appeal had to meet the ‘second appeals test’ and since the matter had been settled in Norton, this test could not be met. Newey LJ rejected that argument: the appeal had to meet that test and, if it did, the Court was entitled to consider any grounds of appeal, even if they did not meet the test.

Newey LJ also dismissed Bexley’s other objections to granting Ms Uduezue permission to rely on her fourth ground. The Court granted her permission to rely on that ground and allowed her appeal on that basis.

Bexley applied to the Court of Appeal for permission to appeal the fourth ground to the Supreme Court on the basis that Norton was wrongly decided. The Court of Appeal refused it permission. Bexley has 28 days to renew that application to the Supreme Court directly.

Ms Udeuzue was represented by Martin Hodgson and Daniel Grütters. They were instructed by Arandeep Hundal from Lawstop.