Nadia Zaman v London Borough Of Waltham Forest

Although Mr Jamie Burton KC, who appeared for Ms Zaman with Ms Siân McGibbon, advanced a number of contentions, I can concentrate on one strand of his case: the submission that it was incumbent on Waltham Forest to secure accommodation as close as possible to where Ms Zaman was living and that the evidence does not show it to have done so. Mr Burton did not deny that, on the day Ms Zaman was offered accommodation at 65 Longshaw Street, there was no other 3-bedroom property available, but he disputed that that should have been the case. Waltham Forest, he said, has not produced evidence demonstrating that it had been impossible for it to obtain accommodation nearer to the borough. On the face of it, Waltham Forest could be expected to have been able to find such accommodation (say, in Norwich, Peterborough, Birmingham, Northampton or Stafford), and the fact that it had not done so has not been adequately explained.

Mr Burton made reference to Waltham Forest’s response to a freedom of information request. It can be seen from this that in 2019-2020 70 of Waltham Forest’s 247 Zone C PRSOs related to accommodation in Stoke-on-Trent and that in 2020-2021 Stoke-on-Trent accounted for 51 of Waltham Forest’s 116 Zone C PRSOs. Those statistics suggest, Mr Burton submitted, that Waltham Forest had not been trying to obtain accommodation as close as possible to the borough.

As Mr Burton noted, Waltham Forest had formulated and published both a “Private Rented Sector Offer Policy”, setting out principles on which PRSO accommodation should be offered, and an “Accommodation Acquisitions Policy”, “set[ting] 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” (to quote from paragraph 1.1). The “Accommodation Acquisitions Policy” explained that, where possible, units of accommodation would be procured in the borough (“Zone A”) and that, where there was a shortfall in the number of “in borough” units, Waltham Forest would endeavour to acquire units in “nearby locations” (“Zone B”, comprising “Greater London and neighbouring districts in Essex, Hertfordshire, Kent, Surrey, Berkshire and Buckinghamshire”) “in order to minimise, as far as possible, the distance between the borough itself and the location of accommodation being offered to households who cannot be accommodated in the borough” (paragraph 2.1). Where it was unlikely to be possible to acquire sufficient properties for all homeless households in Zones A and B, the council “may acquire properties in other locations (‘Zone C’)” (paragraph 2.1), but “[a]ll 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” (paragraph 4.3). Waltham Forest used suppliers to procure properties on its behalf, but the council had to “ensure that the suppliers’ actions are compliant with the acquisitions policy” (paragraph 5.2), and suppliers “are requested to procure as many properties as possible in the borough, to procure properties in nearby locations wherever possible, and to procure properties as close as possible when considering other areas” (paragraph 5.4). Mr Burton accepted that this policy was not itself unlawful, but he argued that it is not apparent that it was applied lawfully in relation to Ms Zaman.

Mr Nicholas Grundy KC, who appeared for Waltham Forest with Mr Michael Mullin, did not accept that Waltham Forest necessarily had to provide accommodation as close as possible to the borough. He said 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.

In any event, Mr Grundy said, Waltham Forest’s “Accommodation Acquisitions Policy” provided for properties to be procured “as close to the borough as possible”, and the evidence does not establish that that policy was not duly implemented. To the contrary, the response to the freedom of information request confirms that the council provided Zone C accommodation elsewhere than in Stoke-on-Trent. Moreover, Ms Bhatt explained in her witness statement that the council sought to procure properties in “all locations”.

In Nzolameso, having cited from, among other things, section 208 of the 1996 Act, article 2 of the 2012 Order, the Code and “Supplementary Guidance on the homelessness changes in the Localism Act and on the Homelessness (Suitability of Accommodation) (England) Order 2012” (“the Supplementary Guidance”, again issued by the Secretary of State), Baroness Hale said this in paragraph 19:

“The effect, therefore, is that local authorities have a statutory duty to accommodate within their area so far as this is reasonably practicable. ‘Reasonable practicability’ imports a stronger duty than simply being reasonable. But if it is not reasonably practicable to accommodate ‘in borough’ they must generally, and where possible, try to place the household as close as possible to where they were previously living. There will be some cases where this does not apply, for example where there are clear benefits in placing the applicant outside the district, because of domestic violence or to break links with negative influences within the district, and others where the applicant does not mind where she goes or actively wants to move out of the area. The combined effect of the 2012 Order and the Supplementary Guidance changes, and was meant to change, the legal landscape as it was when previous cases dealing with an ‘out of borough’ placement policy, such as R (Yumsak) v Enfield London Borough Council [2003] HLR 1, and R (Calgin) v Enfield London Borough Council [2006] 1 All ER 112, were decided.”

Baroness Hale thus said that, if it is not reasonably practicable to accommodate “in borough”, the local housing authority “must generally, and where possible, try to place the household as close as possible to where they were previously living”. In a similar vein, in Waltham Forest London Borough Council v Saleh [2019] EWCA Civ 1944. [2020] PTSR 621, Patten LJ, with whom Asplin LJ and Sir Rupert Jackson agreed, said at paragraph 26:

“But paragraph 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 paragraphs 17.47 and 17.48 of the 2018 Code which incorporates not only the guidance which appeared in paragraph 48 of the 2012 Supplementary Guidance but also the effect of various intervening decisions, in particular that of the Supreme Court in Nzolameso [2015] PTSR 549.”

Mr Grundy, however, drew attention to changes in the Secretary of State’s guidance which post-date Nzolameso. As can be seen from paragraph 15 of Baroness Hale’s judgment, at the time Nzolameso was before the Courts the Code said this, in paragraph 17.41, about the location of accommodation:

“The location of the accommodation will be relevant to suitability and the suitability of the location for all the members of the household will have to be considered. Where, for example, applicants are in paid employment account will need to be taken of their need to reach their normal workplace from the accommodation secured. The Secretary of State recommends that local authorities take into account the need to minimise disruption to the education of young people, particularly at critical points in time such as close to taking GCSE examinations. Housing authorities should avoid placing applicants in isolated accommodation away from public transport, shops and other facilities, and, wherever possible, secure accommodation that is as close as possible to where they were previously living, so they can retain established links with schools, doctors, social workers and other key services and support essential to the well-being of the household.”

The Supplementary Guidance added:

“48.

Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the 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 authority has a justifiable reason or the applicant has specified a preference.

49.

Generally, where possible, 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. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.”

These paragraphs of the Supplementary Guidance correspond closely to what are now paragraphs 17.50 and 17.51 of the Code: see paragraph 30 above. As, however, Mr Grundy stressed, the second sentence of what has become paragraph 17.50 of the Code has been revised. Whereas paragraph 48 of the Supplementary Guidance stated that accommodation farther from the authority’s district was “not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference”, 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”.

In Nzolameso, Baroness Hale had encouraged local housing authorities to have, and to make publicly available, policies “for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year” and “for allocating those units to individual homeless households”: see paragraph 39. “This approach,” Baroness Hale said in paragraph 40, “would have many advantages”. She went on:

“It would enable homeless people, and the local agencies which advise them, to understand what to expect and what factors will be relevant to the decision. It would enable temporary letting teams to know how they should go about their business. It would enable reviewing officers to review the decisions made in individual cases by reference to those published policies and how they were applied in the particular case. It would enable reviewing officers to explain whether or not the individual decision met the authorities’ obligations. It would enable applicants to challenge, not only the lawfulness of the individual decision, but also the lawfulness of the policies themselves.”

In paragraph 38, Baroness Hale had commented that “[t]he decision in any individual case will depend on the policies which the authority has adopted both for the procurement of temporary accommodation, together with any policies for its allocation”.

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. My reasons include these:

It follows that, in my view, it was incumbent on Waltham Forest to try to accommodate homeless households as close as possible to the borough even where accommodation was available only in Zone C unless there was a particular reason not to do so. That, of course, accords with the council’s “Accommodation Acquisitions Policy”, which specifically provides for properties to be “as close to the borough as is reasonably practicable”. Mr Burton, however, argued that the policy cannot have been followed or, at least, that the evidence does not show that it had been.

We were referred to two cases in which comparable issues have arisen: Alibkhiet and Abdikadir.

In Alibkhiet, the London Borough of Brent (“Brent”) had offered Mr Alibkhiet a flat in Smethwick in the West Midlands. One of the arguments advanced on his behalf was that Brent had “not explained how [units in London] are procured or the success that is achieved in obtaining them” and “barely anything is said in relation to accommodation between London and Birmingham or in relation to any other town that is outside London but closer to Brent than Birmingham”: see paragraphs 77 and 78. However, the Court of Appeal rejected the criticism. Lewison LJ, with whom Henderson and Asplin LJJ agreed, said this:

“79.

Brent’s review decision treats London and the South East together. It begins by explaining the shortage of social housing in Brent. It goes on to explain that there is a chronic shortage of affordable private rented sector accommodation within both Brent and London and the South East; and that Brent cannot compete with other tenants for the limited supply of such accommodation. It explains that suitable affordable accommodation is only procurable in major conurbations. The review decision deals in terms with Brent’s previous ability to offer placements in Luton, High Wycombe and Margate; and explains why that is no longer possible. Such units of accommodation that are available are allocated by applying Brent’s policy. In my judgment, that is an adequate explanation of why Brent does not have access to accommodation within London and the South East.

80.

Once that area is eliminated, the West Midlands seems to me to be the next available pool of supply. It is, I suppose, theoretically possible that Brent might have been able to find somewhere in East Anglia or the East Midlands that was closer to Brent than Birmingham as the crow flies; but that places an onerous burden on a housing authority. [Counsel for Mr Alibkhiet] accepted that Brent was not required to scour every estate agent’s window between Brent and Birmingham. In addition the review decision explained that suitable affordable accommodation is only available in main metropolitan locations. Moreover, I am by no means convinced that the simple metric of distance as the crow flies is the be-all and end-all, if one leaves out of account means of communication between the offered accommodation and the borough to which the application is made. The review decision goes into a lot of detail about means of communication between Brent and Birmingham by car, coach and train. These, in my judgment, are legitimate factors for a housing authority to take into account when considering an out of borough placement.”

In Abdikadir, Ealing London Borough Council (“Ealing”) had offered Mr Abdikadir accommodation in West Drayton, in the London Borough of Hillingdon. It was argued on his behalf that Ealing “did not make a sufficient search for in-borough accommodation before making the out of borough placement; and did not comply with its procurement policy”: see paragraph 40. Lewison LJ, with whom King and Asplin LJJ agreed, identified the “real question” as “whether Ealing actually complied with its policies”: see paragraph 56. As Lewison LJ explained in paragraph 57, “both the original letter … accepting the full housing duty and the acquisition policy contemplate the acquisition of private sector rented property and the making of private sector rental offers”, but Ealing’s response to an inquiry as to what steps it had taken to comply with its duty under section 208(1) of the 1996 Act “did not mention any steps taken to investigate the availability of private sector property”. “The acquisition policy stated that acquisition officers ‘check relevant websites on a daily basis for new supply’”, but, as Lewison LJ noted in paragraph 57, “there was no evidence that that had been done”. “If in fact”, Lewison LJ said in paragraph 59, “Ealing had followed its policy, all that would have been required would have been a statement saying that it had, and explaining how it had done that”. As it was, Lewison LJ came to the “reluctant” conclusion that this ground of appeal succeeded: see paragraph 60.

In my view, the present case is analogous to Abdikadir. 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.

I would allow Ms Zaman’s appeal.

Ms Uduezue’s existing grounds of appeal raise essentially three issues:

Ms Uduezue further seeks permission to appeal on an additional ground, namely, that Bexley did not inform her of “the effect under section 195A of a further application to a local housing authority within two years of acceptance of the offer” in accordance with section 193(7AA) and (7AB) of the 1996 Act in that she was not told of the effect of section 195A(2). On 19 January 2023, Underhill LJ gave directions for the application for permission to appeal on this ground to be determined at the hearing.

I shall take these points in turn.

Mr Hodgson pointed out that, at the date Bexley offered Ms Uduezue accommodation at 85 Hartington Street, a 2-bedroom flat and a 2-bedroom house were available within the borough. These, he said, would have been suitable for Ms Uduezue. Ms Uduezue could have shared one bedroom with her baby and her other daughters could have shared the remaining bedroom. Bexley, however, discounted that accommodation and looked no further than the only 3-bedroom property that was available: 85 Hartington Street. It thus failed to do all that was “reasonably practicable”, in accordance with section 208(1) of the 1996 Act, to secure accommodation for Ms Uduezue within the borough.

The first answer to this contention is that Ms Uduezue did not intimate that a 2-bedroom property would suffice. She had been moved from a 2-bedroom property to a 3-bedroom one in July 2020 following Victoria’s birth. There is no suggestion that she indicated that a smaller property would do either at that stage, or at any time before she was offered 85 Hartington Street or even during the review process.

In Cramp v Hastings Borough Council [2005] HLR 786 (“Cramp”), Brooke LJ, with whom Arden and Longmore LJJ agreed, said in paragraph 14:

“[T]he review procedure gives the applicant and/or another person on his behalf the opportunity of making representations about the elements of the original decision that dissatisfy them, and of course they may suggest that further inquiries ought to have been made on particular aspects of the case …. Given the full-scale nature of the review, a court whose powers are limited to considering points of law should now be even more hesitant than the High Court was encouraged to be at the time of [R v Kensington and Chelsea London Borough Council, ex p Bayani (1990) 22 HLR 406] if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered.”

In Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104, [2011] PTSR 565, Wilson LJ observed at paragraph 32 that Brooke LJ’s dictum required qualification in the light of the coming into force of section 49A of the Disability Discrimination Act 1995, which required public authorities to have due regard to various matters related to disability. Further, in Hajjaj v Westminster City Council [2021] EWCA Civ 1688, [2022] PTSR 420, Bean LJ, with whom Nugee LJ and Falk J agreed, concluded in paragraphs 70 and 71 that, to approve a PRSO, a local housing authority “must … be satisfied that none of the ten bars to suitability established by article 3(1) [of the 2012 Order] exists” and that, in that context, “[i]t cannot be right that it is for the applicant for the accommodation to raise a red flag”. Bean LJ explained in paragraph 71:

“At the time the PRSO is made, the applicant has had no input at all. It would be contrary to the scheme of the Act to shift the burden onto the prospective tenant to object, particularly since a failure to accept the PRSO has potentially drastic adverse consequences if the objection is not upheld. The PRSO must not be made unless the LHA are satisfied that the accommodation is suitable: section 193(7F).”

The present case, however, does not raise any issue as to either disability or the “bars to suitability” found in article 3 of the 2012 Order.

Mr Hodgson submitted that the Cramp principle cannot apply as Ms Uduezue was unaware of the availability of 2-bedroom accommodation until she saw the review decision. While, however, Ms Uduezue will not have known the position as regards 2-bedroom accommodation, the possibility of such accommodation being available was an obvious one. If, therefore, Ms Uduezue wished to be considered for a 2-bedroom property rather than 3-bedroom accommodation such as that to which she had recently moved following Victoria’s birth, she could have said so. The fact that she did not means, I think, that Mr Ekechukwu cannot be criticised for not dealing with the point specifically.

In fact, however, it can be seen from the review decision that Bexley’s view was that only 3-bedroom accommodation would be suitable for Ms Uduezue. Mr Ekechukwu said not only that he was satisfied that 85 Hartington Street was suitable (see paragraphs 26, 30, 36 and 43 of the decision letter), but that the 2-bedroom and 4-bedroom properties which were available when Ms Uduezue was offered 85 Hartington Street “were not deemed suitable for [her] housing needs” (paragraph 58 of the decision letter). Further, that view cannot be said to have been by any means an irrational one. By 11 August 2020, Ms Uduezue had three children and was living in a 3-bedroom house. It is true that, at that point, Victoria was still less than two months old and so could sleep in her mother’s bedroom (provided it was large enough), but she would have been 14 months or so even if Ms Uduezue had remained at 85 Hartington Street for no more than a year. In the circumstances, it is hardly surprising that Bexley considered that 2-bedroom accommodation would not be suitable for Ms Uduezue, and it was essentially for Bexley to assess what would be suitable (compare e.g. Ali v Newham London Borough Council [2001] EWCA Civ 73, [2002] HLR 20 (“Ali”), at paragraph 18). Bexley’s view could be impugned if it were irrational, but, as I say, it was not. Perhaps Bexley would have taken a different view if Ms Uduezue had voiced a willingness to accept a 2-bedroom property, but she did not do so.

As Mr Hodsgon developed his submissions before us, the thrust of the criticism as regards Catherine was that Bexley failed to investigate what impact moving to Chatham would have on her and her education. More specifically, Mr Hodgson argued that Bexley should have spoken to the school she was then attending.

However, in R v Royal Borough of Kensington and Chelsea, ex p Bayani (1990) 22 HLR 405 Neill LJ said of a local housing authority’s statutory duty “to make such inquiries as are necessary to satisfy themselves as to whether [the applicant] is homeless or threatened with homelessness”, at 409:

“Before I turn to the facts in the present case, I think it is right to draw attention to some general considerations:

(1)

The duty to make inquiries is to make such inquiries as are necessary to satisfy the authority: see section 62(2). It follows therefore that as it is the authority which have to be satisfied the scope and scale of the inquiries is, primarily at least, a matter for them. But the introduction of the word ‘necessary’ indicates that there is a standard which these inquiries must observe. In other words, the inquiries must be those which are ‘necessary’ to enable the authority to make a decision.

(2)

If the Court is to intervene by way of judicial review, it must be on the basis, as I see it, that the inquiries have not reached the required standard in the circumstances of the case. The appropriate test in a case of possible intentional homelessness is whether a reasonable authority, having made the inquiries and only the inquiries which the authority in question in fact made, could have been satisfied that the applicant was homeless intentionally …. If a reasonable authority could not have been so satisfied, the ‘necessary’ inquiries will not have been made.

(3)

In deciding how a reasonable authority would have acted and what inquiries they would have made in the circumstances, the court must have regard to the speech of Lord Brightman in R. v. Hillingdon L.B.C., ex parte Puhlhofer [1986] A.C. 484 where he said at p. 518:

‘… it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case … Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’”

At 415, Neill LJ said:

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.”

Cramp is to similar effect. In that case, Brooke LJ said this:

“57.

… Parliament has imposed the duty of making the necessary inquiries on a housing officer, and in the event of a review, on a senior housing officer as well ….

58.

In each case it was for the council to judge what inquiries were necessary, and it was susceptible to a successful challenge on a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further inquiries suggested by the appellants’ advisers ….

59.

Similarly in the Phillips case it was pure speculation on the judge’s part to think that an approach to a probation officer would have yielded more information than Camden already possessed. It was not open to him to quash Camden’s decision as a matter of law on the grounds ‘that it would have been helpful’ if those inquiries had been made, or that ‘there might well have been additional information’ which the probation officer could have given. [The reviewing officer] had considered that it was not necessary to make these further inquiries, or to go behind the GP’s report, and Mr Phillips’s solicitors had never suggested that she should …. In these circumstances it was not in my judgment open to the judge to hold that no reasonable council would have refrained from making these further inquiries, and the judge should not have interfered with Camden’s decision on the review.”

In the present case, Ms Uduezue could be expected to be aware of, and to draw Mr Ekechukwu’s attention to, matters relating to the impact which moving to Chatham would be likely to have on Catherine, and she did so. She explained that Catherine, who was due to return to school on 4 September 2020, was preparing for 11+ (or, as she put it, 6+) examinations and that moving to Chatham would both affect her performance and cut off bonds with friends. It can be seen from his decision letter that Mr Ekechukwu took all these points on board.

In the circumstances, it is unsurprising that Mr Ekechukwu saw no need to make further inquiries in relation to Catherine. He was entitled to think that he already knew enough. Ms Uduezue had highlighted her concerns, and they did not obviously raise any point that called for additional investigation. In fact, it is not clear even now what speaking to Catherine’s school might have added. Of course, Catherine might have preferred to stay at the primary school she was then attending (though she was anyway going to have to change school at the end of the forthcoming academic year), but her circumstances remained broadly typical and there was no evident need to find out more. This is certainly not a case in which no reasonable local authority would have failed to make further inquiries. To the contrary, I should have thought that few, if any, would have done so.

To be a PRSO, an offer must, among other things, be “an offer of an assured shorthold tenancy made by a private landlord to the applicant in relation to any accommodation which is, or may become, available for the applicant’s occupation”: see section 193(7AC)(a) of the 1996 Act.

In the present case, Mr Hodgson argued that the offer made to Ms Uduezue of accommodation at 85 Hartington Street was not a PRSO as (a) it was made by Bexley rather than the proposed “private landlord” and (b) the proposed “private landlord” was not identified to Ms Uduezue.

While, however, Bexley said in its offer letter of 11 August 2020 that it was “pleased to offer” Ms Uduezue accommodation at 85 Hartington Street, it also explained that it intended to end its duty and resolve Ms Uduezue’s homelessness by “arranging for a private landlord to make you an offer of an assured short-hold tenancy in the private rented sector” and that the offer was “a private rented sector offer defined by section 193(7AC) as an offer of an assured shorthold tenancy made by a private landlord to an applicant”. As was pointed out by Mr Riccardo Calzavara, who appeared for Bexley, it is impossible for a tenancy granted by a local authority to be an “assured shorthold tenancy”: see sections 1(2) and 19A of, and paragraph 12 of schedule 1 to, the Housing Act 1988. In all the circumstances, it is plain, I think, that the offer letter served to inform Ms Uduezue of “an offer of an assured shorthold tenancy made by a private landlord” rather than being just an offer from Bexley itself. Bexley is to be understood to have communicated an offer made by a private landlord.

As for the fact that the offer letter did not identify the “private landlord”, there is, in my view, no such requirement. Section 193(7AC) does not state that the identity of the “private landlord” must be revealed, and I see no reason to infer that that was Parliament’s intention.

The additional ground of appeal for which Ms Uduezue seeks permission has been prompted by the recent decision of this Court in Norton v Haringey London Borough Council [2022] EWCA Civ 1340, [2022] PTSR 1802 (“Norton”).

Section 193(7AA) of the 1996 Act provides for a local housing authority to cease to be subject to the “main housing duty” “if the applicant, having been informed in writing of the matters mentioned in subsection (7AB)” accepts or refuses a PRSO. Those matters include, by section 193(7AB)(c), “in a case which is not a restricted case, the effect under section 195A of a further application to a local authority within two years of acceptance of the offer”.

One of the issues in Norton was whether Haringey London Borough Council (“Haringey”) had failed to inform the appellant of “the effect under section 195A of a further application to a local authority within two years of acceptance of the offer”. The relevant parts of section 195A are set out in paragraph 25 above. In Norton, Haringey had explained in its offer letter that section 195A “absolves a person who makes an application for accommodation within two years of acceptance of a PRSO of the need to show that they are still in priority need” (to use words of Males LJ at paragraph 55). The Court of Appeal concluded, however, that Haringey should also have told the appellant about section 195A(2).

In that regard, Elisabeth Laing LJ, with whom Asplin and Males LJJ agreed, said in paragraph 43:

“The question is what is the ‘effect under section 195A of a further application’ within two years of the current application. The introductory words of section 195A(2) are ‘For the purpose of subsection (1)’. Section 195A(2) is a special rule, for the purpose of section 195A(1), about the time at which a person becomes homeless. In my judgment, ‘the effect under section 195A’ includes the effect of section 195A(2) . It was common ground that A was not notified of the effect of section 195A(2). On the ordinary meaning of those words, he was not, therefore, told of the effect, ‘under section 195A of a further application’.”

For his part, Males LJ, with whom Asplin LJ also agreed, said:

“56.

[S]ection 195A provides in subsection (2) that an applicant making a further application within two years of accepting a PRSO will be treated as homeless from the date on which a valid notice under section 21 of the Housing Act 1988 expires, even though they continue to occupy the property. Put shortly, such an applicant is treated as homeless for the purpose of a further application within two years, even though in fact, as a matter of ordinary language, they are not (or not yet) homeless. That was not explained in the local authority’s offer letter. In my judgment it should have been. It may have an important effect on a further application within two years, which an applicant needs to understand.

…

58.

In the event, it is clear that the appellant was aware, well within the two-year period (which has not yet expired) of the effect of section 195A. Nevertheless, however technical this may be, Parliament has stipulated that if a local authority’s housing duty to a person in priority need is to cease by virtue of a PRSO, the offer must comply with section 193 (7AA) and (7AB)(c).”

The Court thus concluded that Haringey’s duty to the appellant continued: see paragraphs 51 and 54.

In the present case, there is no dispute but that, while the offer letter to Ms Uduezue sought to inform her of the implications of section 195A(1) of the 1996 Act, it did not inform her of the effect of section 195A(2). That being so, Ms Uduezue seeks permission to appeal on this ground.

Opposing this, Mr Calzavara advanced three main arguments. First, he said that, since this is a second appeal, it could not be appropriate to grant permission to appeal on the new ground unless it “raised an important point of principle or practice” as well as having a real prospect of success. That condition, he said, was not satisfied as the relevant legal principles have already been established, in Norton. Secondly, he contended that, had the point on which Ms Uduezue now wishes to rely been raised earlier, Bexley could have sought to persuade Judge Saggerson that he should refuse her relief in the exercise of his discretion, and, that opportunity having been denied to Bexley, it would not be right to allow Ms Uduezue to raise the point in this Court. Thirdly, Mr Calzavara submitted that permission to appeal should be refused because no explanation has been given for the 84-day delay between the decision in Norton and the new ground of appeal being raised.

With regard to the first of these contentions, there is no doubt that a second appeal can be brought only if this Court considers that it raises “an important point of principle or practice” or there is “some other compelling reason for the Court of Appeal to hear it”. Section 55(1) of the Access to Justice Act 1999 provides:

“Where an appeal is made to the county court, the family court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(a)

the appeal would raise an important point of principle or practice, or

(b)

there is some other compelling reason for the Court of Appeal to hear it.”

Consistently with that, CPR 52.7 states as regards second appeals:

“The Court of Appeal will not give permission unless it considers that—

(a)

the appeal would—

(i)

have a real prospect of success; and

(ii)

raise an important point of principle or practice; or

(b)

there is some other compelling reason for the Court of Appeal to hear it.”

However, neither section 55 of the Access to Justice Act 1999 nor CPR 52.7 stipulates that every ground of appeal for which permission to appeal is given must (absent another compelling reason for this Court to hear it) raise an important point of principle or practice, and in my view that is not the law. The appeal as a whole must raise such a point, but, if one ground of appeal with a real prospect of success does so, permission to appeal can be given in respect of one or more other grounds of appeal which have real prospects of success but are of no wider significance. As Brooke LJ explained in Tanfern Ltd v Cameron-Macdonald [2000] EWCA Civ 3023, [2000] 1 WLR 1311, at paragraph 42, the enactment of section 55 of the Access to Justice Act 1999 introduced a “major change to our appeal procedures” such that it would “no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is ‘properly arguable’ or ‘because it has a real prospect of success’”. If, though, “the appeal”, overall, gives rise to an important point of principle or practice, permission to appeal can be granted for grounds which do not themselves do so but have “a real prospect of success” even in the case of a second appeal. It cannot therefore assist Mr Calzavara to say that the new ground of appeal does not raise an important point of principle or practice.

Turning to Mr Calzavara’s second contention, he cited in that connection Singh v Dass [2019] EWCA Civ 360, where Haddon-Cave LJ said this:

“15.

The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18.

Third, even where the point might be considered a ‘pure point of law’, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22 at [29]).”

In the present case, Mr Calzavara said, the fact that the Norton point was not advanced before Judge Saggerson has robbed Bexley of the chance to argue that Ms Uduezue should, as a matter of the exercise of the Court’s discretion, be refused relief. Had the issue been raised in the County Court, Mr Calzavara suggested, Bexley might have wished to adduce other evidence or otherwise have conducted the proceedings differently so that it has “acted to [its] detriment on the faith of the earlier omission to raise it”.

Mr Calzavara also relied in this context on R v Islington London Borough Council ex p Degnan (1998) 30 HLR 723 (“Degnan”) and Ali. In Degnan, a local housing authority had failed to comply with its obligations “in the manner of its communication of an offer of accommodation to Mrs Degnan” (as Judge Rich QC put it at first instance, “the decision as communicated to the applicant did not follow from the form of the decision made by the [council] committee”), but, “even if the manner of the communication of the offer had been lawful, it would have made no difference to the outcome since Mrs Degnan had unreasonably refused the offer for other reasons”: see 725. In the exercise of his discretion, the judge refused relief, and an appeal was dismissed. Auld LJ, with whom Staughton LJ and Sir John Balcombe agreed, expressed the view, at 729, that the judge had proceeded on the basis that “he should only refuse relief in the exercise of his discretion if the unlawfulness of the decision made no difference to the outcome”, and concluded at 732:

“In this case, … this court should not interfere with the exercise of discretion by the judge below unless the discretion was clearly exercised on wrong principles. In my view, that cannot be shown here.”

In Ali, the judge found that there had been several procedural flaws in a local housing authority’s decision-making (for example, it had failed to investigate certain matters), but “decided that the decision of the respondents would inevitably have been the same, even if they had followed a fair procedure”: see paragraph 3. Latham LJ, with whom Sir Christopher Slade agreed, concluded in paragraph 20 that, on the facts, the judge had been “wrong to conclude that he should confirm the decision of the review”, but he had explained in paragraph 13:

“It is accepted that, in a situation such as this, the county court should only confirm a decision otherwise vitiated by procedural irregularity if it can properly be said that the decision would inevitably have been the same even if the matter had been dealt with properly: See Barty-King v. Ministry of Defence [1979] 2 All E.R. 80.”

In contrast, Mr Hodgson argued that cases such as Degnan and Ali are not in point and, hence, that Bexley would have been no better placed if the new ground of appeal had been raised at an earlier stage. It necessarily follows from the fact that Ms Uduezue was not informed of all the matters mentioned in section 193(7AB) of the 1996 Act that Bexley’s duty towards her did not cease in accordance with section 193(7AA). It could not have helped Bexley, Mr Hodgson maintained, to adduce evidence designed to show that Ms Uduezue would have acted no differently if she had been told about section 195A(2).

For my part, I find it hard to see what evidence Bexley could usefully have put forward on the question whether Ms Uduezue would have acted differently had she been informed of the effect of section 195A(2) of the 1996 Act. The issue would, on the face of it, have been outside Bexley’s own knowledge. Even assuming, however, that Bexley had somehow been able to demonstrate that Ms Uduezue would have behaved in just the same way despite her attention being directed to section 195A(2), Norton indicates that that would not have mattered. As I understand Norton, the Court of Appeal’s view was that, where a person to whom a local housing authority owed the “main housing duty” was not informed of the matters mentioned in section 195(7AB), the duty simply continues, the conditions for its cessation not having been met. Thus, in Norton Males LJ said in paragraph 54 that, “[u]nless [it provided the requisite information], the local authority’s housing duty to the appellant continued”. The logic is evidently as follows: section 193(3) provides that the “main housing duty” is owed “until it ceases by virtue of any of the following provisions of this section”; the only such provision relevant in a case such as Norton or the present one is section 193(7AA); and, under section 193(7AA), cessation of the duty is dependent on the applicant “having been informed in writing of the matters mentioned in subsection (7AB)”. On that basis, the fact that the Norton point was not raised earlier in these proceedings cannot have prejudiced Bexley. Supposing that it had been advanced before Judge Saggerson, he would have had no discretion to exercise and it could not have availed Bexley to adduce any additional evidence.

We invited counsel to comment on the relevance, if any, of R v Soneji [2005] UKHL 49, [2006] 1 AC 340 (“Soneji”) and subsequent cases such as Natt v Osman [2014] EWCA Civ 1520, [2015] 1 WLR 1536 and Elim Court v Avon Freeholds [2017] EWCA Civ 89, [2018] QB 571. In Soneji, the House of Lords had to consider the effect of a failure to comply with a statutory requirement. Lord Steyn said in paragraph 23 that “the rigid mandatory and directory distinction, and its many artificial refinements”, which had formerly been adopted, “have outlived their usefulness” and that “the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity”. Mr Hodgson’s response to our invitation was to the effect that the requirement in section 193(7AA) of the 1996 Act to inform an applicant of the matters mentioned in section 193(7AB) “is intended to be mandatory in the sense that non-compliance will invalidate the offer and the local authority cannot then seek to discharge its duty”. Nor did Mr Calzavara suggest that the Soneji line of cases could assist Bexley. He observed that citation of the authorities might have affected the Court’s analysis in Norton, but accepted that the Court had come to the clear conclusion that Parliament intended invalidity and that we are bound by Norton on the point.

With regard, finally, to Mr Calzavara’s third contention, the appeal had already been initiated when judgment was given in Norton on 19 October 2022; Ms Uduezue raised the Norton point in the first half of January of this year, shortly after she had been granted permission to appeal and in time for Bexley to address the issue in its skeleton argument; and there is no reason to suppose that the delay has otherwise caused Bexley any prejudice.

In all the circumstances, I would both grant Ms Uduezue permission to appeal on the additional ground and allow the appeal on that basis.

I would allow both appeals.