London Borough of Enfield v A (2025) EWCA Civ 1355

This was a second appeal from a s.204 Housing Act 1996 appeal of the suitability of temporary accommodation. The appeal was by LB Enfield, Ms A having been successful on first appeal.

The issues were i) whether LB Enfield failed to search for available accommodation closer to the applicant’s former home than the accommodation which was in fact made available, and ii) whether LB Enfield had failed to notify the local authority (Haringey) of Ms A’s placement in their borough within the statutory time limit.

This is a rather odd case, and if you think you have not seen the argument about the statutory notification to the receiving borough before, it turns out that there is a very good reason for that.

Ms A had become homeless in Enfield due to severe domestic abuse (for which her former partner received a prison sentence). LB Enfield accepted the application and then the full s.193 housing duty.

It was common ground that Ms A could not be accommodated in Enfield, due to the risk to her from her former partner and associates. She was offered a property in Haringey, about 1.5 miles from Enfield. MS A accepted but requested a review of suitability. In that review, her solicitors raised 5 points

i) The accommodation was too small;

ii) Its location placed Ms A at the risk of violence and threats of violence;

iii) It was having a negative effect on her mental health;

iv) It was in disrepair; and

v) There was no free parking.

Ms A’s solicitors also added that

Ideally, she wished to be placed in Waltham Cross in Broxbourne or Northwood in Hillingdon. They stated that although Studio B was in Haringey, it was not suitable because the 217 bus route that Ms A used to visit her mother ran through areas where her ex-partner and his family resided; and that MB and his associates were known to use that bus route. She had not, however, been exposed to violence or threats of violence at Studio B. The points made about the location of Studio B were specific to that property. It was not suggested that Ms A either could or should have been placed in accommodation closer either to her previous address or to Enfield.

The review decision upheld the property’s suitability, noting that there was no option but to move Ms A out of the borough but that she had been placed in neighbouring borough near to the border so she could maintain her support networks. The review also noted that a DSAH assessment had advised that Haringey was a possible option for Ms A, and that there were other possible bus routes.

Ms A appealed that decision. Enfield notified Haringey of the placement some 7 months after it had taken place,

On the s,204 appeal, the Circuit Judge quashed the review decision, apparently on the basis that Enfield’s failure to notify Haringey under s.208(2) and (4) was a ground for quashing the decision. Enfield appealed.

The Court of Appeal allowed the appeal, in LJ Lewison’s judgment.

Ms A’s case to the County Court alleged a failure of the s.208 (1) duty

(1) So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.

But this could not realistically be argued where it was common ground (and Ms A’s request) that she not be accommodated in borough.

Nor could Nzolameso v Westminster City Council (2015) UKSC 22 (our note) assist Ms A. Enfield had applied their policy, which was itself not challenged.

On Article 2 of the Homelessness (Suitability of Accommodation) Order 2012

The local authority’s duty under article 2 of the Order is to take into account the location of the offered accommodation and, in the case of an out of borough placement “the distance of the accommodation from the district of the authority.” It is to be noted, at this stage, that what is to be taken into account is the distance between the accommodation and the authority’s district, not the distance between the accommodation and the applicant’s former home. The reviewing officer plainly complied with that duty because she said in terms that in order to alleviate Ms A’s distress and the possibility of isolation from her support network Enfield had accommodated her not simply in a neighbouring borough, but “in particular” in an area which bordered Enfield. I do not regard the instruction to have regard to the distance of the accommodation from the district of the authority to require the authority to measure precisely the linear distance between the two.

And on the Homelessness Code of Guidance

It is clear that, unlike the position in Zaman, the local authority’s supposed duty to find accommodation closer to Ms A’s former home was not a point raised in the many rounds of representations made by her solicitors. In their representations there was no objection to a placement in Haringey as such. Nor is this a case like Abdikadir v Ealing LBC (2022) EWCA Civ 979, (2022) PTSR 1455 in which the applicant’s solicitors pressed the authority to explain what steps it had taken to comply with its duty under section 208.

(…)

That point is compounded in the present case by the express requests made on behalf of Ms A asking to be placed either in Hillingdon or in Broxbourne. You do not need to be an expert geographer to know that Hillingdon is the westernmost London borough, separated from Enfield by Barnet and Harrow; and Broxbourne is not even in London (as the reviewing officer pointed out). The fact that Ms A expressed a desire to remain in London but also specified an out of London location as one of her preferred locations seems to me to show that the precise linear distance between the accommodation in which she was placed, and Enfield was not of importance to her.

(Our note on Abdikadir is here )

Overall on this ground

The suggestion now is that Enfield failed to apply its placement policy because it did not search for accommodation as close as possible to where Ms A was previously living. But that is not what the policy says; for two reasons. First, it says that out of borough accommodation will be “close” to Enfield; not “as close as possible”. Second, the closeness referred to in the policy is closeness to Enfield, not closeness to an applicant’s previous address. Studio B satisfied both criteria. In addition, whether accommodation is “close” to Enfield is a question of fact or an evaluative decision for the reviewing officer to make. If a policy is lawful and is properly applied, that will normally be both a lawful decision and also sufficient to explain why a decision has been taken: Alibkhiet at (48) and (53). This challenge therefore also fails.

I regret to say that I regard this challenge as an opportunistic technical point devoid of substance. It is a prime example of the judicialisation of welfare services, which has been consistently deprecated.

And then, on the s.208(2) notification issue, there was no doubt that Enfield were in breach of the statutory duty to notify Haringey of the placement within 14 days. But the question was what were the consequences of the breach.

The purpose of s.208(2) was not, as suggested by Ms A so that the notifying authority could receive information from the receiving authority on the suitability of the accommodation, as there was no duty on the receiving authority to respond at all, and the duty applied regardless of any suitability challenge. The more plausible explanation of the purpose was the ability to refer any subsequent homeless application to the receiving borough back to the notifying borough in the first 5 years of the placement – s.199(4) Housing Act 1996.

The s.208(2) duty is not a duty to the homeless applicant, who does not have to be notified and gave rise to no ability to request a review.

If an applicant is offered out of borough accommodation which is suitable when the offer is made, and the applicant takes up that offer, I find it difficult to suppose that Parliament’s intention can have been that the accommodation becomes unsuitable 14 days later simply because the placing authority has not notified the host authority in accordance with the statutory time limit. To allow the applicant to assert that the accommodation has become unsuitable for that reason would, indeed, be to give that applicant, by a windfall, power to upset what is otherwise a lawful decision. In principle, it seems to me, a decision made by a public authority is either valid or invalid at the time that it is made; and that clear legislative provision would be needed before a valid decision is retrospectively invalidated.

The homeless applicant suffered no prejudice by the failure to notify.

The failure to notify therefore dod not affect the suitability of the accommodation.

The duty to notify the host authority is an entirely collateral duty, breach of which does not in my view impugn the lawfulness of a review decision. It follows that since a failure on the part of the placing authority to notify the host authority under section 208 (2) and (4) does not affect the suitability of the offered accommodation, it falls outside the scope of any appeal under section 204 which is limited to grounds that go to the legality of the review decision.

The Circuit Judge should not have quashed the decision on that ground. Appeal allowed.