Moge v London Borough of Ealing (2023) EWCA Civ 464

Another one that I am apparently late in writing up. A second appeal to the Court of Appeal from a s.204 appeal.

Ms Moge was owed the section 189B Housing Act 1996 relief duty as homeless by LB Ealing. Ealing made an offer of a 24 month private tenancy in Hounslow, a neighbouring borough, in discharge of that duty. Ms M did not accept that offer within 7 days. Ealing then decided that she had refused the offer, that its relief duty was ended and, further, it did not owe the full housing duty under section 193.

Ms Mo sought a review, stating that a) she had not refused the offer, and b) the unsuitability of the offer given its distance from her place of work in Ealing.

The review officer sent a ‘minded to’ letter, which cited the out of date 2006 statutory Code of Guidance, pre Nzolameso. The letter also stated

Our Temporary Accommodation (Reduction) team advised that the property offered to Ms. Moge on the 25 May 2021 (sic) was the only 2 bedroom accommodation available at the time of offer.

And went on to refer to Ealing’s policy on temporary accommodation allocation in and out of borough.

The letter also found that Ms M had been given opportunities to sign the tenancy agreement but had refused to do so, so refusing the offer.

Ms M’s solicitors responded on the suitability of the accommodation given Ms M’s employment needs as a carer, but did not respond on the extent of searches carried out for available accommodation by Ealing, or cite s.208(1) on accommodation in district.

The review upheld the discharge of duty.

On s.204 appeal, Ms M pursued the suitability issue, and the non-refusal, but also alleged that the temporary accommodation policy had been misapplied in deciding MS M was not entitled to in borough accommodation, that Ealing had not carried out searches for in-borough accommodation at the date of decision and date of review, and so had breached the s.208(1) duty.

This was dismissed on the basis that an internal Ealing email (actually post dating the initial decision) confirmed there was no in-borough accommodation.

On the second appeal to the Court of Appeal, Ms M argued

that in making a final offer of accommodation to Ms. Moge, the Council was in breach of section 208(1), (a) because it had not demonstrated that its officers had carried out a search for suitable accommodation closer to Ms. Moge’s places of work in Ealing than the Flat in Lower Feltham; and (b) because the Council’s officers only searched for private sector accommodation and did not search for suitable properties from the accommodation available to the Council under Part VI of the Act.

The Court of Appeal held, following Nzolameso v Westminster City Council (2015) UKSC 22 (our note), and Abdikadir v Ealing LBC (2022) EWCA Civ 979,(our note):

i) Even if Ms M did not qualify for ‘zone 1’ (in borough) accommodation under Ealing’s policy, the council should have tried to secure accommodation as nearby as possible;

ii) the onus was on the council to show compliance with s.208(1) where raised,.

The review decision did not indicate what, if any enquiries the council had made for local properties.

But this was understandable as s.208(1) had not been raised by Ms M’s solicitors in the review process. That changed on s.204 appeal, and Ealing did not seek to advance any new evidence as to enquiries undertaken.

The Judge on first appeal had been in error.

the Judge held that,

“…I have found no point of law [sic] which indicated that [the Council] failed to carry out the appropriate researches expected and the simple fact as explained in the [review decision was] that there was very limited housing stock available with only one property that could be offered to Ms. Moge and on her refusal it went off to someone else.”

The Judge did not, however, explain what the “appropriate researches” were; and to the extent that he relied upon the statements in the review decision to support a conclusion that the Flat was “[the] only … property that could be offered to Ms. Moge”, for the reasons set out above, the evidence did not support that conclusion.

In these circumstances, and in light of the fact that it was for the Council to satisfy the Judge that it had complied with its duty under section 208(1), in my view the Judge was wrong to reject this ground of challenge to the review decision on the limited evidence referred to in his judgment.

However, Ealing had now sought permission to introduce new evidence as to their temporary accommodation acquisition policy and its operation. Ms M opposed this.

The new evidence was allowed as the focus of the second appeal was on the review decision.

Although it could be said that the Council should not be given two chances to get its tackle in order, one on appeal in the County Court and the second in this Court, I am (just) persuaded that this would be unfair. Unlike the position in Abdikadir in which the applicant’s solicitors did ask the Council prior to the appeal proceedings what it had done to comply with section 208(1), in the instant case no such inquiries were made, and the focus of Ms. Moge’s appeal to the County Court was very much on other points, including whether Ms. Moge had in fact rejected the offer of the Flat and whether she had wrongly been classified as not qualifying for accommodation in Ealing itself. The issue of compliance with section 208(1) in relation to an out-of-borough placement was therefore not at the forefront of the appeal before the Judge in the same way as it is on the appeal in this Court.

While the Temporary Accommodation Acquisition Policy did not mention accommodation in discharge of s.189B duty, this was because it pre-dated the Homelessness Reduction Act 2017. However, it was a concern that the policy had not been updated, as

Lady Hale identified the importance of relevant policies in homelessness cases being approved by the democratically accountable members of a local authority, being publicly available and being kept up-to-date. She indicated that this was in order that those who administer the policies on behalf of the local authority can follow them, and so that those who are subject to the policies can understand what has been done, and why, in an individual case.

However, it was reasonably clear that the council had continued to apply the policy to s.189B duty as well as those with the full housing duty, and had just failed to keep the policy references up to date.

The new evidence was admitted.

While a point of Nzolamezo and Abdikadir was that a local authority should be generally entitled to rely on a policy and a general explanation of the application of that policy, that would not always be the case. As per Zaman v London Borough of Waltham Forest (2023) EWCA Civ 322 (our note) there would be occasions where the offer made was clearly crying out for a detailed explanation of searches carried out, as the facts suggested the policy had not been implemented.

There was nothing on specific searches in Ealing’s evidence. But there was no reason to suppose, on the facts, that the policy had not been implemented. Moreover, no-one had identified a suitable alternative property available closer to Ealing at the relevant time.

Accordingly, although I do not agree with the way that the Judge dealt with the challenge under section 208(1), I think that with Ms. Grant’s evidence there is (just) sufficient evidence before this Court to show that at the relevant time the Council’s acquisitions officers did carry out an appropriate search to find suitable private sector properties for Ms. Moge in neighbouring boroughs to Ealing, that there is no evidence that any other more suitable property of this type was available, and hence that the offer of the Flat did not breach the Council’s obligations under section 208(1) or the 2018 Guidance in this respect.

On the second element of the appeal, that Ealing could have used Part VI properties to discharge the relief duty, Ms M had conceded that the council was not obliged to consider an allocation of one of its own properties under the s.208(1) duty. But MS M did maintain that the council was required to investigate whether a housing association would accept a nomination.

The Court of Appeal disagreed

Section 208(1) only requires a local authority to take steps which are “reasonably practicable” to accommodate an applicant under Part VII in-borough, and in discharging this duty, the authorities to which I have referred make it clear that an important factor will be whether a local authority has, and has followed, a published policy. Although it has not been updated since 2013, the fact remains that there is nothing in the Council’s Allocation Policy to indicate that any housing available under Part VI should be made available to applicants under Part VII, and the shortfall of accommodation to meet demand under Part VI in Ealing indicates why such a step would be controversial.

Accordingly, even if an otherwise suitable Part VI property had been available in Ealing at the relevant time, I see no basis for a conclusion that it would have been reasonably practicable for the Council to have made bespoke arrangements to procure that it should have been made available to be offered to Ms. Moge under Part VII. Still less do I consider that the fact that the Council’s officers did not investigate such a possibility amounted to a breach of section 208(1).

Appeal, albeit with some hesitation given the deficiencies in the council’s published policies, dismissed.

Comment

The first point is to make sure that every arguable point is included in review submissions.

The second point is that councils who have not kept their policies updated, and who don’t have, for example, a policy expressly addressing suitability of accommodation offered in discharge of s.189B relief duty, are potentially on thin ice.

I rather suspect that if the accommodation offered here had been further than an adjoining borough, the outcome may well have been different.