London Borough of Waltham Forest v Saleh

This is an appeal by the London Borough of Waltham Forest (“the Council”) against a decision of HH Judge Saggerson made on 18 October 2018 on an appeal under s.204 of the Housing Act 1996 (“HA 1996”). The central issue on this appeal is whether, in conducting a review of a homelessness decision under s.202 HA 1996, the review officer must reconsider the decision in the light of all relevant circumstances at the date of the review or is limited to a reconsideration of the facts as they stood at the date of the original decision. The particular issue in this case is whether the review officer, in reconsidering a decision to provide accommodation for Mr Saleh, the respondent, and his family outside the Council’s own district, ought to have taken into account the availability as at the date of review of any suitable accommodation either within or closer to that district.

In August 2014 Mr Saleh applied to the Council for housing under Part 7 HA 1996 on the basis that he and his family were homeless. He has six children and had been living in privately rented accommodation in Walthamstow from about 2000. The Council accepted that Mr Saleh was in priority need and had not become homeless intentionally so that he was owed the full housing duty under s.193. The Council was therefore obliged to secure that accommodation was available for occupation by him and his family (see s.193(2)) and that such accommodation was suitable: see s.206(1). But in discharging these functions the Council may in certain circumstances secure the provision of accommodation outside their own Local Housing Authority district (“LHA”). Section 208 provides:

If they secure that accommodation is available for the occupation of the applicant outside their district, they shall give notice to the local housing authority in whose district the accommodation is situated.”

Once the Council had accepted that it owed Mr Saleh and his family a s.193 duty they were placed into emergency accommodation in Hackney. This was in August 2014. They occupied this accommodation until October 2014 when the Council secured temporary accommodation for them at 116 London Road, Romford. In the meantime, Mr Saleh’s daughter, Sara, had begun school in Walthamstow.

In October 2015 Mr Saleh’s mother came to live at 116 London Road and Mr Saleh then began to challenge the suitability of the accommodation on the ground, inter alia, that it was too small. The Council accepted this in February 2016 and on 28 February 2017 they offered Mr Saleh temporary accommodation at 179 Little Ilford Lane which is in the London Borough of Newham, outside the Council’s own district. Mr Saleh accepted the offer but later in August 2017 he completed a “Disability and Health Questionnaire” on behalf of his daughter, Sara, and requested that his family be rehoused within the Council’s district so that they could be “as close as possible to [Sara’s] school, family, friends and hospital”.

Sara suffers from Type 1 diabetes which has on occasions necessitated hospital treatment. She has also suffered episodes of incontinence during her journey to and from school. Each journey takes up to one hour.

On 26 October 2017 the Council informed Mr Saleh that having considered the information contained in the questionnaire it still considered that the accommodation at 179 Little Ilford Lane remained suitable for him and his family. Mr Saleh requested a review of the decision as provided for under s.202 HA 1996. So far as material, this states (as amended):

any decision of a local housing authority as to his eligibility for assistance,

any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness),

any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),

any decision under section 198(5) whether the conditions are met for the referral of his case,

any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred),

any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7), or

any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193).

There is no right to request a review of the decision reached on an earlier review.

A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.

On a request being duly made to them, the authority or authorities concerned shall review their decision.”

In his request for a review, made through Shelter, Mr Saleh relied principally upon the impact on Sara of the journey between 179 Little Ilford Lane and her school in Walthamstow. This, it was said, rendered the accommodation unsuitable. The request for review stated:

There was a telephone conversation between Mr Saleh and the review officer (Ms Kristine Ross) on 19 June 2018 but on 26 June 2018 the review officer notified

Many of the factors considered in the decision letter are not directly relevant to the issues raised on this appeal. But in the part of the letter which responds to Mr Saleh’s submission that the Council has a duty under s.208(1) to provide accommodation within its district so far as reasonably practicable, the review officer refers to the need (recognised in the Homeless Code of Guidance) for local authorities to have in place policies for procuring sufficient units of temporary accommodation and for prioritising the allocation of in-district accommodation at times when the supply is inadequate to meet demand. Her letter goes on:

What the review officer did not consider was whether, at the time of the review, any suitable accommodation was available within or closer to the Council’s district. Mr Saleh appealed to the County Court under s.204 HA 1996 on this and a number of other grounds including that the review decision was made in breach of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“the 1999 Regulations”) or was otherwise procedurally unfair.

In his judgment following the hearing of the appeal, Judge Saggerson held that the failure of the review officer to consider the availability at the date of review of other suitable accommodation within or closer to the Council’s own district was an error of law which vitiated the review decision. He said:

But he rejected the ground of appeal based on an alleged breach of the 1999 Regulations or on procedural unfairness.

With the permission of McCombe LJ, the Council now appeals against the judge’s decision regarding the date for consideration of the availability of suitable accommodation and Mr Saleh challenges his rejection of the arguments based on the 1999 Regulations and procedural unfairness.

Although he does not say so, the statement of principle contained in [5] of the judgment of Judge Saggerson quoted above is based on a passage from the judgment of Waller LJ in the decision of this Court in the case of Omar v Westminster City Council [2008] HLR 36 (“Omar”). But before I come to the authorities, it is necessary to say a little more about the statutory framework which governs homelessness decisions of this kind and, in particular, the provision of out-of-district accommodation.

The full housing duty which the Council owed to Mr Saleh under s.193(2) HA 1996 was satisfied by securing that suitable accommodation was available for his occupation. This can include an offer of accommodation by a private landlord in the form of what is defined as a private rented sector offer which means an assured shorthold tenancy for a period of at least 12 months: see s.193(7AA)-(7AC). Mr Grundy QC for the Council made the point that once an applicant accepts an offer of a tenancy for this period of time and so becomes contractually bound to the private landlord for its duration the right to seek a review of the offer under s.202 may be of limited value. In some cases this may be so, although, as this case demonstrates, review decisions sometimes take considerable periods of time to complete. But this point is of no real assistance in addressing the question raised on this appeal. The nature of a review under s.202 in a case where the applicant has accepted the accommodation offered is one of general application and is not dependent on whether the accommodation provided is or is not the property of a private landlord. But, as I shall explain shortly, the ability of hardpressed local authorities within the London areas to secure privately owned accommodation sometimes a considerable distance outside their districts has led to housing guidance on out-of-district placements which is highly material to this appeal.

The full housing duty prescribed by s.193(2) must be performed in compliance with the supplementary provisions contained in ss.205-210 HA 1996. These provisions enable housing authorities to discharge their functions by making out-of-area placements where the provision of accommodation within their districts is not reasonably practicable (s.208(1)) and, as I have said, to discharge their functions through arrangements with private landlords. But the core obligation of securing accommodation that is suitable applies in all cases. This is confirmed by s.206(1) which provides:

by securing that suitable accommodation provided by them is available,

by securing that he obtains suitable accommodation from some other person, or

by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”

There is no definition of suitability in Part 7 of HA 1996 but the case law has identified a number of considerations which may be relevant to the housing authority’s consideration of any particular application. What follows is not an exhaustive summary but does, I think, identify a number of the key components in any decision:

The accommodation must be suitable in relation to the applicant and to all members of the applicant’s household normally residing with the applicant. This requires an assessment of the needs and reasonable requirements of the applicant and his or her family and the location of the proposed accommodation may also be relevant to that assessment: see R (ex parte Sacupima) v Newham LBC [2001] 1 WLR 563 (“Sacupima”) at page 575;

There may be degrees of suitability depending on the particular housing duty which falls to be performed. In their judgment in R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36 (“Birmingham”), Lady Hale and Lord Neuberger said (at [18]):

It follows that accommodation which was, when provided, suitable may cease to be suitable depending on the changing needs and circumstances of the household and the duration of their intended period of occupation. In Kannan v Newham LBC [2019] HLR 22, Lewison LJ (referring to the judgment in Birmingham) said (at [6]):

A local housing authority is required by s.182(1) HA 1996 to “have regard to such guidance as may from time to time be given by the Secretary of State”. The Secretary of State is also empowered by s.210(2) to make orders specifying:

The 2006 Homelessness Code of Guidance for Local Authorities (“the 2006 Code”) issued by the Department of Communities and Local Government made explicit reference to location as being a factor relevant to suitability. Paragraph 17.41 states:

In 2012, during the passage of the Localism Bill, the Government carried out a consultation exercise on a proposed new order dealing with the issue of suitability in the context of the difficulties experienced by local authorities in providing accommodation for homeless applicants within their own district. The purpose of the consultation was to consider whether additional protections were necessary and how this might be done. The consultation exercise included the provision of temporary accommodation and the use of private rented sector accommodation. In the consultation paper on the proposed order (at [39]) the Department stated:

Following this consultation exercise, the Secretary of State made the Homelessness (Suitability of Accommodation) (England) Order 2012 (“the 2012 Order”). Article 2 is concerned with the issue of location:

where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority;

the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household;

the proximity and accessibility of the accommodation to medical facilities and other support which—

are currently used by or provided to the person or members of the person’s household; and

are essential to the well-being of the person or members of the person’s household; and

These provisions were supplemented by guidance (see Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012) (“the 2012 Supplementary Guidance”) which stated in [47]-[48]:

The current form of guidance is that contained in the 2018 Homelessness Code of Guidance for Local Authorities (“the 2018 Code”) which was issued with the coming into force of the Homelessness Reduction Act 2017. The version of the 2018 Code in force at the time of the review decision in this case was version 2. The following paragraphs are particularly relevant:

The suitability of the location for all the members of the household must be considered by the authority. Section 208(1) of the 1996 Act requires that authorities shall, in discharging their housing functions under Part 7 of the 1996 Act, in so far as is reasonably practicable, secure accommodation within the authority’s own district.

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.

Generally, where possible, housing authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.

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.

On one view the condition of suitability might be said to require the housing authority to be satisfied that the accommodation reached a minimum standard of suitability for the particular household even if it was not ideal. There is some support for this view in the cases. In Sacupima at first instance (see [2001] 33 HLR 1) Dyson J said:

But [48] of the 2012 Supplementary Guidance makes it clear that where accommodation which is also suitable exists closer to the housing authority’s district it is likely, all other things being equal, to displace on grounds of suitability other available accommodation which is further away. To that extent, the housing authority is required to carry out a comparative exercise. This is now confirmed by [17.47] and [17.48] of the 2018 Code which incorporates not only the guidance which appeared in [48] of the 2012 Supplementary Guidance but also the effect of various intervening decisions, in particular that of the Supreme Court in Nzolameso.

A feature of HA 1996 which remains unchanged is that the right of review granted to an applicant under s.202(1) does not in terms apply to a decision of the housing authority to provide accommodation outside its district under s.208(2). Under s.202(1)(f) the applicant is limited to seeking a review of the decision of the authority:

But location is, as I have explained, a relevant factor in any assessment of suitability and in Nzolameso the Supreme Court addressed the scope of the power to make out-ofdistrict placements under s.208 and how such decisions might be challenged on grounds of suitability. Having set out the provisions of the 2012 Order and [48] and [49] of the 2012 Supplementary Guidance, Lady Hale said this:

She then considered the criticism made of the housing authority’s decision in that case which was that it had failed to consider the availability of other accommodation in or closer to its own district:

The effect of this decision 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.

The principal issue on this appeal is whether the need for the housing authority to investigate whether other suitable accommodation exists closer to or within its own district applies not only to the authority when it makes the original housing decision but also to the officer who conducts the review of suitability under s.202(1). It is, as I said earlier, common ground that no such investigation took place at the review stage in this case.

As stated in [17.8] of the 2018 Code, there is a continuing duty on the part of the housing authority to keep the suitability of accommodation under review. This was made clear by the House of Lords in the Birmingham case in the context of short-term or temporary accommodation and [17.8] of the 2018 Code now expresses the obligation in more general terms. Mr Grundy accepts that the duty is a continuing one. But he contends that the courts should be wary of increasing the administrative burdens on local housing authorities and that the guidance on location contained in [48]-[49] of the 2012 Supplementary Guidance (and now [17.47]-[17.48] of the 2018 Code) should be read as limited in its application to the time when the original offer is made. If it is to be applied as part of a rolling review of the suitability of accommodation which has been offered and accepted then this would lead, he says, to the accommodation moving in and out of suitability depending on the availability of alternative accommodation from time to time. It would, he says, make the task of local housing authorities administratively complex if not impossible and lead to obvious disruption.

I have some sympathy with the argument that the burden on local housing authorities should not be unnecessarily increased. But 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. We are concerned only with whether the review of an original housing decision involving an out-of-district placement (which clearly ought to take into account the availability of other suitable accommodation within or closer to the authority’s district) similarly involves a consideration of whether other suitable accommodation closer to or within the district has become available as at the date of review. This issue is not free of authority. In Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 the House of Lords confirmed that an inquiry by a housing authority under s.184(2) HA 1996 as to whether the applicant “has” a connection with the district of another local authority fell to be carried out by the review officer at the date of the review decision. The review was not limited to the circumstances existing at the date of the original decision. At [26] Lord Slynn of Hadley said:

The same approach was taken by this Court in Omar in relation to a review of the suitability of the proposed accommodation. At [25] Waller LJ said:

Judge Saggerson directed himself in accordance with this decision.

The decision in Omar was followed in Abed v City of Westminster [2011] EWCA Civ

Finally, I should refer for completeness to the later decision of this Court in Temur v Hackney LBC [2014] HLR 39 where the issue was whether the review officer was entitled to reach a decision on the review that was adverse to the applicant on different grounds from the original decision. The housing authority had decided that the applicant was not in priority need but on review the officer decided that the applicant was not homeless because by the date of the review she had acquired accommodation which it was reasonable for her to occupy. Jackson LJ (at [34]-[35]) said:

Lewison LJ said: “79. I take the word “review” as being, in this context, equivalent to “reconsider”. Thus on a straightforward reading of s.202(1) what the authority is being asked to do is to reconsider the question what duty (if any) is owed to him under those sections. I do not see this as in any way incompatible with s.202(5) which requires the authority, on a request being made, to “review their decision”. The authority will review their decision by reconsidering what duty (if any) is owed to the applicant.

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.

I agree.

I also agree.