Sahra Moge v London Brough of Ealing

The issue in this appeal is whether, when seeking to discharge its relief duty under section 189B of the Housing Act 1996 (“section 189B” and “the Act”) to take reasonable steps to help the Appellant (“Ms. Moge”) secure suitable accommodation for her occupation, the Respondent local authority, the London Borough of Ealing (“the Council”), acted in accordance with the requirements of 208(1) of the Act, “so far as reasonably practicable … [to] … secure that accommodation is available … in their district”.

The case arises from a decision by the Council on 25 May 2021 to serve notice on Ms. Moge, informing her that it took the view that its relief duty to assist her had come to an end. The reason given was that Ms. Moge had refused an offer of suitable accommodation arranged by the Council of a 24 month assured shorthold tenancy of a two-bedroom flat with a private sector landlord in Elvedon Road, Lower Feltham, in the neighbouring London Borough of Hounslow (“the Flat”). The Council also contended that the consequence of its decision was that it did not owe Ms. Moge the full housing duty under section 193 of the Act.

It is at the outset necessary to distinguish between Parts VI and VII of the Act.

Part VI of the Act sets out a regime for the allocation of housing accommodation by a local authority. An applicant for allocation of housing accommodation under Part VI may be a person who is homeless. But it also may be a person who is not homeless, but who is, for example, currently living in unsatisfactory housing conditions, or who has a medical or welfare need.

Under section 159 of the Act, such an allocation might be achieved in a number of ways. For present purposes, these include the selection by the local authority of a person to become a secure or introductory tenant of housing accommodation held by the local authority itself; or the nomination by the local authority of a person to become an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord pursuant to arrangements between the local authority and the registered provider or landlord. An assured tenancy includes an assured shorthold tenancy for this purpose.

Local authorities are required by section 166A of the Act to have a scheme for the allocation of housing accommodation which gives people a choice or the opportunity to express a preference about housing accommodation, and also gives reasonable preference to people in various categories of need. In Ealing and the London Boroughs of Brent, Harrow and Hillingdon, the allocation of housing accommodation by local authorities pursuant to Part VI is administered through an online system called LOCATA, to which a number of registered provider landlords are members and on which available properties are listed. Each local authority is, however, only able to allocate properties located within its own district.

Part VII of the Act – which is the Part with which this appeal is primarily concerned - imposes duties on local authorities in relation to persons who are homeless. For present purposes it is necessary to distinguish between three different duties: the interim duty under section 188, the full housing duty under section 193, and the relief duty under section 189B of the Act.

Section 188 of the Act applies where the local authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need. In such a case, the authority,

“… must secure that accommodation is available for the applicant’s occupation”.

Section 193 of the Act imposes what is conventionally referred to as the “full housing duty”. That full housing duty applies (a) where the authority is satisfied that an applicant is homeless and eligible for assistance and has not become homeless intentionally, (b) where the applicant has a priority need, and (c) where the relief duty has come to an end. Unless the full housing duty is otherwise disapplied, the local authority,

“… shall secure that accommodation is available for occupation by the applicant.”

Section 189B(2) was added to the Act with effect from 3 April 2018 by the Homelessness Reduction Act 2017 (the “2017 Act”). Section 189B(2) imposes an initial duty, conventionally referred to as the “relief” duty, where the local authority are satisfied that an applicant is homeless and eligible for assistance. There is no requirement that the applicant have a priority need. For a period of 56 days, or until the relief duty ends at an earlier stage, the local authority,

“… must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months”.

The Explanatory Notes to the 2017 Act explained the purpose of the relief duty as follows,

“28.

Section 189B places a duty on local housing authorities to take reasonable steps for 56 days to relieve homelessness by helping any eligible homeless applicant to secure accommodation.

29.

Help would be provided for households whether or not they are in ‘priority need’ under the 1996 Act … Local housing authorities will be required to take reasonable steps that are likely to help the applicant to secure accommodation. Reasonable steps could include, for example, providing a rent deposit or access to mediation to keep households together.”

The local authority’s relief duty under section 189B(2) can come to an end in a variety of ways. It will end if the authority is satisfied that suitable accommodation is available for the applicant’s occupation for at least six months: it will also end if the authority has complied with its duty to provide help to the applicant for a period of 56 days, whether or not the applicant has secured accommodation: see sections 189B(7)(a) and (b).

Another method by which the local authority may bring the relief duty to an end is under section 193A(1) of the Act. That section applies if, having been informed of the consequences of refusal and the right to request a review of the suitability of the accommodation offered, the applicant refuses either a “final accommodation offer” or a “final Part 6 offer”.

Section 193A(4) defines a “final accommodation offer” as an offer of an assured shorthold tenancy for a fixed term of at least six months made by a private landlord to the applicant pursuant to arrangements made by the local authority in discharge of their relief duty under section 189B(2). A “final Part 6 offer” is an offer of accommodation under Part VI of the Act that is made by the authority in discharge of their duty under section 189B(2) and which states that it is a final offer. By section 193A(6) of the Act, a local authority may not approve a final accommodation offer or a final Part 6 offer unless they are satisfied that the accommodation is suitable for the applicant.

Importantly, if section 193A(1) applies, in addition to ending the relief duty, the local authority will also not be subject to the full housing duty under section 193: see section 193A(3). The making of a final accommodation offer is therefore capable of having very significant consequences for an applicant.

The manner in which a local authority discharges its various duties under Part VII is dealt with in section 205 of the Act as follows,

“(1)

The following sections have effect in relation to the discharge by a local housing authority of their functions under this Part to secure that accommodation is available for the occupation of a person—

Section 206 (general provisions),

Section 208 (out-of-area placements),

Section 209 (arrangements with private landlord).

(2)

In sections 206 and 208 those functions are referred to as the authority’s “housing functions under this Part”.

(3)

For the purposes of this section, a local housing authority’s duty under section 189B(2) or 195(2) is a function of the authority to secure that accommodation is available for the occupation of a person only if the authority decide to discharge the duty by securing that accommodation is so available.”

Section 208(1) of the Act – which is the key provision on this appeal – is headed “Discharge of functions: out-of-area placements”. It provides,

“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.”

It is clear that section 208(1) applies to the discharge of a local authority’s housing functions under both the interim duty in section 188 and the full housing duty in section 193 of the Act. In those cases the local authority is itself required to secure that accommodation is available for occupation by the applicant. Indeed, the leading cases on the requirements of section 208(1) are all cases in which the applicant was owed the full housing duty.

The application of section 208(1) is not so straightforward in relation to the discharge of a local authority’s relief duty under section 189B(2). Section 205(3) provides that the requirements of section 208(1) only apply where the local authority decides to discharge its relief duty by securing that accommodation is available for the applicant. The limitation in section 205(3) manifestly reflects the fact that the relief duty is intended to be a more flexible and less onerous obligation than the interim duty or the full housing duty.

However, section 205(3) clearly means that if a local authority was to decide to discharge its relief duty by itself providing (or as the Act calls it, “securing”) accommodation for an applicant, it would be obliged to comply with section 208(1). Although the language of section 205(3) is less clearly applicable in a case in which the local authority does not itself secure the accommodation, it would be a surprising result if section 208(1) did not also apply if, instead of itself providing the accommodation, the local authority instead sought to bring its relief duty to an end under section 193A(4) by making a final accommodation offer of suitable accommodation with a private landlord. If it were otherwise, a local authority could make a final accommodation offer and both bring an end to its relief duty and prevent any full housing duty arising without having to give any consideration to section 208(1) at all.

That conclusion is consistent with the guidance published by the Secretary of State on suitability (below). I also note that it was not contended by the Council that section 208(1) did not apply in the instant case.

The concept of “suitability” is central to the ways in which a local authority can discharge its housing functions under Part VII: see e.g. sections 206 and 210 of the Act. That concept is addressed in The Homelessness (Suitability of Accommodation) (England) Order 2012 (the “2012 Order”). Among other things, Article 2 of the 2012 Order provides:

“In determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including—

(a)

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

(b)

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…”

Section 182 of the Act also requires that in the exercise of their functions relating to homelessness, a local authority shall have regard to guidance given by the Secretary of State from time to time. Such guidance was originally provided in a “Homelessness Code of Guidance for Local Authorities” promulgated by the Department for Communities and Local Government in 2006 (the “2006 Code”). The 2006 Code was supplemented in 2012 by “Supplemental Guidance” following the coming into force of the Localism Act 2011. The 2006 Code and the 2012 Supplemental Guidance were both considered by the Supreme Court in the leading case of Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTSR 549 (“Nzolameso”). Following that decision and further consultation, in 2018 the Secretary of State promulgated a significantly revised version of the Code of Guidance (“the 2018 Guidance”).

Chapter 17 of the 2018 Guidance contains guidance on the suitability of temporary accommodation. In that regard, paragraph 17.1 provides that such guidance applies to temporary accommodation secured by the local authority under its interim duty or the main (full) housing duty,

“as well as settled accommodation which would bring the relief or main [full] housing duty to an end.”

Although “settled accommodation” is not defined, it is plainly intended to include accommodation which is the subject of a final accommodation offer which would bring the relief duty to an end under section 193A(1) of the Act and prevent the full housing duty arising by reason of section 193A(3).

The relevant paragraphs of the 2018 Guidance which were in place at the time of the offer to Ms. Moge included the following:

“17.48

Housing authorities, particularly those that find it necessary to make out of district placements, are advised to develop policies for the procurement and allocation of accommodation which will help to ensure suitability requirements are met. This would provide helpful guidance for staff responsible for identifying and making offers of accommodation, and would make local arrangements, and the challenges involved with sourcing accommodation, clearer to applicants.

17.49

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, 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.

17.50

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.”

(emphasis added)

The important words that I have emphasised in italics did not appear in the 2006 Code. They originated in the 2012 Supplemental Guidance and were modified in light of the decision in Nzolameso.

An applicant who is dissatisfied with a decision of the local authority either (a) as to the suitability of accommodation offered by way of a final accommodation offer, or (b) that the relief duty under section 189B(2) has come to an end, may request a review of that decision under section 202 of the Act.

Under section 204 of the Act, an applicant who has requested a review under section 202 and is dissatisfied with the review decision may appeal to the County Court on any point of law arising from the review decision. On that appeal, the County Court applies the same principles as those applicable to judicial review. On a second appeal to the Court of Appeal, the focus for the Court is whether the review decision was lawful, and the court has no independent fact-finding function. A finding of fact may, however, be challenged on public law grounds. See generally Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] HLR 36 (“Abdikadir”) at [8]-[9] and the authorities there cited.

Ms. Moge is now 58. She applied to the Council in March 2020 for assistance under Part VII of the Act on the basis that she and her 20 year old son had been staying with friends in a house in North Ealing but had been given a month to leave. At the time Ms. Moge was working for an agency providing visiting care services to people in Ealing.

The Council drew up a personal housing plan (PHP) for Ms. Moge and accepted that it owed her a duty to prevent her from becoming homeless under section 195 of the Act. Ms. Moge was accommodated in temporary housing in 2020, but on 30 April 2021 the Council wrote to Ms. Moge accepting that she had become homeless and that as a consequence it owed her the relief duty under section 189B(2) of the Act.

The previous day, 29 April 2021, one of the Council’s “Acquisitions Officers”, Patrice Walker, arranged for Ms. Moge to view a property in Southall. Although Ms. Moge reported back on 30 April 2021 that the location of the property was “feasible”, she rejected it on the basis that it was too small and unsuitable for her due to various health issues.

The documents in the appeal bundles show that on 7 May 2021, Percy Oduro, one of the Council’s Acquisitions Officers circulated an internal email that stated,

“Hi All,

Please see properties available.

These are DLs [Direct Lets], please put forward uncapped clients with affordability.”

The email then listed six properties, of which three were two bedroom properties. Two of those three properties were in Ealing (in Southall and Perivale); the third was in the neighbouring London borough of Hillingdon. No further details of the precise locations were given.

The Council’s officer who had been dealing with Ms. Moge, Besidone Adeyemo, emailed Mr. Oduro to request details of “the 2 bedroom property” [sic] mentioned in his email. It does not appear, however, that any of the three two-bedroom properties identified by Mr. Oduro were subsequently offered to Ms. Moge.

Also on 7 May 2021, another of the Council’s Acquisitions Officer, Daniel Teixeira, circulated a further internal email entitled “Re: 2 Bedroom property available in the Private Rented Sector” which stated,

“Hi Team

I hope you’re all well.

I’ve got the following 2 bedroom properties available for prevention/relief clients. Please only refer clients that aren’t [r]ent capped.”

Mr. Teixeira’s email then listed the Flat and a second property on Cricklewood Broadway in northwest London.

Ms. Adeyemo subsequently spoke to Mr. Teixeira. Her file note recorded that Mr. Teixeira was reluctant to offer the Flat to Ms. Moge because she had refused the offer of the property identified by Mr. Walker at the end of April, and the Flat had also been rejected by another applicant, so that Mr. Teixeira was wary that the landlord might pull out. Mr. Teixeira also told Ms. Adeyemo that the flat on Cricklewood Broadway was “very expensive”.

However, Mr. Teixeira said that he would consider Ms. Moge for the Flat in Lower Feltham, and he subsequently emailed Ms. Moge on 11 May 2021, notifying her that he had arranged for her to view it. Mr. Teixeira’s email stated that the Flat was managed by a private landlord, that the Council had arranged for the landlord to make her an offer of a 24 month fixed term assured shorthold tenancy of the Flat, and that the Council’s offer “will apply when you are selected by the landlord”. The email also asserted that this was a final accommodation offer for the purposes of section 189B(2) of the Act.

Mr. Teixeira’s email was followed up by a more formal letter in similar terms that added that the Council would not be making any other offers of accommodation, with the consequence that whether Ms. Moge accepted or rejected the offer, the Council would no longer be subject to any further duty to her under the Act.

Neither the email nor the formal letter from Mr. Teixeira contained any information as to what inquiries the Council had pursued to ascertain whether there was any other suitable accommodation available for Ms. Moge. The formal letter did, however, contain a generic statement to the effect that in reaching its decision that the Flat was suitable for her, the Council had “fully considered” the 2012 Order, and “all existing legislation, statutory guidance and caselaw relating to making suitable offers of accommodation and specifically Chapter 17 of the Homelessness Code of Guidance.”

Ms. Moge sent an email to Mr. Teixeira on 14 May 2021 expressing her appreciation for the offer, but making the point that the Flat was “really far” from her places of work in Ealing, and that she was concerned she might lose her job as a result. After viewing the property on 17 May 2021 and reiterating her concerns, Ms. Moge was told that she could move in and then request a suitability review. In the event, however, Ms. Moge did not sign the necessary tenancy agreement with the private landlord.

The Council took the view that this meant that Ms. Moge had refused its final accommodation offer and that its duty to Ms. Moge under section 189B(2) of the Act had therefore come to an end. That decision was communicated to Ms. Moge in an emailed letter dated 25 May 2021 (the “decision letter”) which was electronically signed by Celia Grant, the Council’s Housing Demand Team Leader. So far as the location of the Flat was concerned, the decision letter stated,

“You informed us that the property is far from your workplace and you might lose your job due to the distance.

We have considered the location of the accommodation and we are satisfied that it would not cause any significant disruption to you. Unfortunately, due to the difficulties in procuring accommodation, it is not always possible to meet all your wishes. The offered property is in a neighbouring borough to Ealing Borough and there are good transport links to your workplace and [it is] reasonable for you to commute.”

Ms. Moge immediately requested a review of the Council’s decision by an email of 25 May 2021 which stated that she had not refused the offer and had been waiting to sign the paperwork for the Flat.

Ms. Moge then instructed solicitors, who requested a copy of the Council’s housing file. The solicitors wrote to the reviewing officer (Navroz Shariff) on 17 June 2021, raising a number of grounds of review. The main ground raised for review was that Ms. Moge had not in fact refused the offer of the Flat, but had been prepared to move in and then request a review of its suitability. The letter also highlighted that the basis upon which Ms. Moge contended that the Flat was unsuitable was its distance from her places of work in Ealing.

Mr. Shariff was assisted in his review by Ajibola Obe. On 20 July 2021 Mr. Obe sent an email asking one of the Council’s Allocations Team whether there had been other two bedroom properties available in Ealing at the time of the offer.

On 28 July 2021 Mr. Shariff sent a letter to Ms. Moge’s solicitors, indicating that he was “minded to find” that the relief duty to Ms. Moge had been properly ended (the “minded to letter”). The minded to letter listed a series of matters which had been considered. These included the decision of the Supreme Court in Nzolameso, the 2012 Order and what was simply referred to as the “Homelessness Code of Guidance for Local Authorities”.

The minded to letter then addressed the issues raised by Ms. Moge’s solicitors, the first such issue being the location of the Flat. In that respect, the minded to letter quoted an extract from the out-of-date 2006 Code. That stated,

“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.”

It will be appreciated that because it dates from 2006, this paragraph does not take into account the decision in Nzolameso, the 2012 Order, the enactment of the relief duty in section 189B(2) of the Act, or the relevant parts of paragraphs 17.49 and 17.50 of the 2018 Guidance emphasised in paragraph 25 above.

Mr. Shariff’s minded to letter continued,

“Furthermore, this Council has a legal duty to ensure that accommodation secured is available within its district in so far as it is reasonably practicable. However, along with many other London Councils, Ealing is experiencing a significant increase in households requesting assistance with housing. Along with the increased local housing demand, the Council is experiencing increasing difficulty in acquiring suitable affordable temporary accommodation and private rented sector accommodation, particularly within Ealing.

The Council is dependent upon a constant supply of accommodation to meet the needs of households who have been required to leave their previous accommodation and need emergency assistance, often without forewarning and not allowing the household to find alternative accommodation. This has led the Council being required to place households into accommodation outside of Ealing Borough, and in some cases out of London.

The Council identifies those in greatest need of remaining in borough and has split the temporary accommodation priorities into 3 separate areas, which are:

Zone 1 – Offer of accommodation within Ealing Borough

Zone 2 – Offer of accommodation within the West London Boroughs … and/or within 45 minutes travel time … to the nearest boundary of Ealing …

Zone 3 – Offer of accommodation in any other area, which may be inside or outside of London.

As stated, wherever possible, and unless it is in the household’s best interests or at the household’s request, the Council will aim to place households within the Borough. However, if there are insufficient placements available the Council will prioritise households taking into consideration their housing needs.”

The minded to letter then referred to Ealing’s Temporary Accommodation Placement Policy (the “TA Placement Policy”), which it said set out the considerations for placing households within Zone 1. The relevant paragraphs of that TA Placement Policy stated,

“The following households will be prioritised for placement in Zone 1, where only accommodation in Ealing would be suitable in the longer term due to the household’s circumstances.

…

5.

Households where one or more persons is in permanent and settled employment within the Brough for the past 12 months to the homeless application, working a minimum of 16 hours (one person) or 24 hours (2 persons). Working household members are expected to be able to commute and consideration of 60 minutes commuting time from home to work is reasonable within London.”

Mr. Shariff stated that he was satisfied that Ms. Moge’s circumstances did not require her to be prioritised for accommodation in Zone 1.

Importantly for present purposes, the minded to letter continued,

“As stated above, it has been extremely difficult for local authorities to find affordable accommodation in their borough, and this is made even more difficult when sourcing larger properties for families. Our Temporary Accommodation (Reduction) team advised that the property offered to Ms. Moge on the 25May 2021 [sic] was the only 2 bedroom accommodation available at the time of offer.

Our Acquisitions team assessed the information that was provided to match [Ms. Moge] with a suitable property. From the information provided, it was decided that she and her child’s [sic] needs could be met outside the London Borough of Ealing.”

(my emphasis)

The minded to letter went on to consider other matters, including the dispute over whether Ms. Moge had in fact refused the offer of the Flat. In that respect, Mr. Shariff indicated that he was inclined to accept the Council’s version of events, supported by the managing agent for the Flat, which was to the effect that although given the option of accepting the accommodation and putting in a review request, Ms. Moge had refused to sign the tenancy agreement for the Flat in spite of being given several opportunities to do so.

From the fragments of emails which were in the appeal bundles before us, it would appear that after the minded to letter had been sent, on 2 August 2021, Azra Khan, an Allocations Officer, sent an email to Mr. Obe in response to his enquiry about the accommodation which had been offered to Ms. Moge. The email stated,

“Hi Ajibola,

This was a Direct Let offer made by Daniel [Teixeira] – this process is different to PSL offers. Anyway, we did not have any 2 Beds in Ealing at the time this offer was made.”

On 3 August 2021, Ms. Moge’s solicitors responded to the minded to letter of 28 July 2021, making further representations to Mr. Shariff. The first point taken was to reiterate that Ms. Moge had not refused the offer of accommodation at the Flat. The letter of 3 August 2021 then went on to make representations as to the suitability of the Flat for Ms. Moge. In that regard, after setting out a number of medical matters, the letter asserted that, “The decision maker has failed to consider Ms. Moge’s employment and her travel time and costs.” The letter then went on to make a number of detailed submissions concerning the nature of Ms. Moge’s work as a carer, which required her to visit people at a number of addresses within Ealing, with gaps between jobs. The letter claimed that it would not be practical for Ms. Moge to return to the Flat in Lower Feltham between jobs. It asserted that due to her work pattern, Ms. Moge needed to live in or close to the Borough of Ealing.

The representation letter did not, however, take issue with the reported view of the Council’s Temporary Accommodation (Reduction) Team that the Flat offered to Ms. Moge “was the only 2 bedroom accommodation available at the time of offer”. Nor, importantly, did the representation letter refer to section 208(1) or raise any other issue as to the adequacy of the search conducted by the Council for suitable properties closer to Ealing than the Flat.

The Council’s decision was affirmed by Mr. Shariff in a letter of 12 August 2021 (the “review decision”). Mr. Shariff adhered to his view that the Flat was suitable for Ms. Moge and that she had refused the offer, with the result that the Council’s housing duties to her had come to an end. The format of the review decision closely followed the earlier minded to letter, with additions to address the further representations that had been made. On the question of suitability, the review decision letter contained the same paragraphs from the minded to letter as set out in paragraphs 44 to 47 above.

On the specific question of the distance which Ms. Moge would be required to travel to work, and in response to the further representations, Mr. Shariff stated that Google Maps had indicated that the journey time from Feltham to the first of Ms. Moge’s places of work in Ealing would be 52 minutes. He added that he did not think that Ms. Moge needed to return home during her working day. He suggested that during her waiting periods she could stay with friends in Ealing or go to a library. Mr. Shariff stated that he was satisfied that the distance between the accommodation offered and Ms. Moge’s places of work was reasonable.

Ms. Moge appealed to the County Court. Her appeal was dismissed by HHJ Raeside KC (“the Judge) on 6 January 2022. In all, Ms. Moge advanced five grounds of appeal. Ground 1 was a challenge on the basis of procedural unfairness in relation to the supply of the Council’s housing file, and Ground 2 contested the finding that Ms. Moge had rejected the offer of accommodation at the Flat. It is apparent from the note of the Judge’s judgment that most of the focus at the appeal hearing was on these grounds, and in particular Ground 2.

Ground 3 challenged the lawfulness of the Council’s TA Placement Policy and the categorisation of Ms. Moge as not qualifying for priority placement in Zone 1 according to paragraph 5 of the criteria in the TA Placement Policy. The further point was made that this mischaracterisation had caused a breach of section 208(1) of the Act because the Council had not considered Ms. Moge for accommodation in Ealing.

Ground 4 made a further allegation that the Council had breached section 208(1) of the Act,

“… because they did not carry out any or any proper search for accommodation in their area or nearby areas as at the date of the offer and at the date of the review … this is because they decided that under their [TA Placement] Policy, the appellant did not qualify for prioritisation for accommodation in their area.

….

The breach is illustrated in two ways.

First, there is no evidence that the Council carried out any search for accommodation in their area or nearby at the date of the offer and at the date of the review. There is only an assertion in the review decision letter that nothing else was available.

Secondly, if they did search, they did not make a sufficiently extensive search that included properties available under their allocation scheme, and temporary accommodation. The term “accommodation” in section 208(1) covers more than just private sector accommodation….”

Ground 5 contended that having offered accommodation to Ms. Moge in Hounslow, the Council had breached the requirement to notify the London Borough of Hounslow of that fact under section 208(2) of the Act.

In his ex tempore judgment, the Judge set out the facts and referred to the law on section 208 as summarised by the Supreme Court in Nzolameso and by Lewison LJ in Alibkhiet v Brent LBC [2018] EWCA Civ 2742; [2019] HLR 15 (“Alibkhiet”). He then rejected the appeal on Grounds 1 and 2 on the facts.

In relation to Ground 3, the Judge first rejected the challenge to the lawfulness of Ealing’s TA Placement Policy. On the question of whether that TA Placement Policy had been misapplied to Ms. Moge, the Judge held that this was not a question of law. He then held that even if Ms. Moge did qualify for priority placement in Zone 1 within paragraph 5 of the TA Placement Policy, in light of the contents of what he described as a letter dated 2 August 2021 from the Council,

“… there were in fact no Zone 1 properties available for Ms. Moge so the matter is somewhat academic.”

The Judge’s reference to a letter of 2 August 2021 was in fact to the internal email dated 2 August 2021 from Ms. Khan to Mr. Obe set out in paragraph 49 above.

On Ground 4, the Judge held, referring to Broderick v Bromley LBC [2020] EWCA Civ 1522, [2021] HLR 19 at [43], that the reviewing officer had to consider the question of the suitability of the accommodation at the date of the offer and not at any other date. In that regard, the Judge held,

“The belated provision of the email of 2 August 2021 necessarily accords with what was said in the [review decision], both of which make clear that the [Flat] was all that was available for rehousing Ms. Moge…

Reading the [review decision] fairly and having regard to the material available at that time to [the Council’s] officer I have found no point of law 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.”

On Ground 5, the Judge essentially held that since Ms. Moge had rejected the Flat, the Council had no obligation to notify London Borough of Hounslow of anything under section 208(2).

Permission for a second appeal to the Court of Appeal was given by Arnold LJ on two grounds in May 2022. It was, however, recognised that the grounds were very similar to those advanced in the appeal to the Court of Appeal in Abdikadir, and so this appeal was stayed pending the outcome of that other appeal. The decision in Abdikadir was handed down on 15 July 2022. In light of that judgment, only one of the two grounds for which permission had been given was pursued before us.

The sole remaining ground of appeal corresponds to Ground 4 of the appeal before the Judge. It was 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 Council contends that the Judge was right to dismiss that ground for the reasons that he gave.

By a Respondent’s Notice filed after the decision in Abdikadir on 29 July 2022, the Council also seeks to uphold the Judge’s decision,

“… because the respondent operated a temporary accommodation acquisitions policy and the respondent was following that policy.”

For the purpose of that Respondent’s Notice, by an application dated 29 September 2022, the Council seeks to adduce evidence that was not before the Judge on the first appeal. The evidence sought to be adduced consists of a statement made on 26 September 2022 by Ms. Grant which exhibits the Council’s Temporary Accommodation Acquisitions Policy (the “TA Acquisitions Policy”) and asserts both that it is relevant to offers to end the relief duty and that her team follows it daily. Her evidence also contends that Ms. Moge was not registered to use the Council’s LOCATA system on 11 May 2021, that she therefore could not have bid for properties under Part VI of the Act, and that there were no two bedroom properties available in Ealing on the LOCATA system at that date in any event.

The Council’s Respondent’s Notice and its application to adduce Ms. Grant’s evidence are opposed by Ms. Moge, essentially on three grounds, (a) that Ms. Grant’s evidence is not fresh evidence because it was available to the Council and could and should have been adduced before the Judge, (b) that the TA Acquisitions Policy does not actually apply to the discharge of the relief duty which the Council owed to Ms. Moge; and (iii) that Ms. Grant’s witness statement does not contain any evidence that the Council actually followed its TA Acquisitions Policy, or any other relevant evidence as to what was actually done in Ms. Moge’s case.

I am grateful to Lord Justice Snowden for setting out the facts and the law with such clarity. I agree that the appeal should be dismissed.

The only issue before this court, although it was only a subsidiary issue in the court below, is whether the Council complied with its duty under section 208(1) of the Housing Act 1996. This provides that:

“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.”

The section does not say in terms that accommodation must be provided as near to an applicant’s previous place of residence as possible, but it is settled law and not disputed that if it is not reasonably practicable to accommodate an applicant “in borough”, the housing authority must generally, and where possible, try to place the household as close as possible to where they were previously living (Nzolameso v Westminster City Council [2015] UKSC 22, [2015] PTSR 549 at [19]). This principle, described in argument as the “concentric circles” approach, is essentially a judge-made expansion of section 208 which is now included in the 2018 Guidance to which local housing authorities are required by section 182 to have regard.

It appears to have had its origin in cases like Nzolameso where a London housing authority sought to discharge its duty to an applicant by providing accommodation which was not merely out of borough, but in a completely different part of the country (near Milton Keynes). Other examples are Alibkhiet v Brent LBC [2018] EWCA Civ 2742, where accommodation was offered in the West Midlands and Zaman v Waltham Forest LBC [2023] EWCA Civ 322, where the accommodation offered in one case was in Stoke-on-Trent and in the other was slightly nearer, in Chatham. However, it applies also to an offer of accommodation in a neighbouring London borough, as in Waltham Forest LBC v Saleh [2019] EWCA Civ 1944, [2020] PTSR 621 and Abdikadir v Ealing LBC [2022] EWCA Civ 979.

In either case it is important that the principle should be applied with reasonable flexibility. If a person to whom housing duties are owed by a London borough is offered accommodation in another part of the country, the court is likely to expect convincing evidence that nothing suitable was available any nearer. But it will recognise that, once it is shown that nothing is available in Greater London, suitable and affordable accommodation is likely to be available only in metropolitan areas, such as the West Midlands. Hence it has been said that a local authority is “not required to scour every estate agent’s window between Brent and Birmingham”, or to investigate every theoretical possibility where something closer may be found (Alibkhiet at [80]).

In my view some flexibility is also appropriate when considering an offer of accommodation in a neighbouring borough. If the accommodation offered is reasonably close to where an applicant was previously living, it should not matter that some other accommodation is marginally closer: a local authority’s obligation is to have regard to the Guidance, which is after all only Guidance, while the authorities formulate the principle in terms of what must generally be done, where possible (Nzolameso at [19]). Any other conclusion would risk the “judicialisation” of the process against which the cases have repeatedly warned and would impose unduly onerous obligations on hard-pressed local authorities with limited resources, faced with an acute housing shortage with multiple applicants for every property (R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557; Nzolameso at [32], warning against “an overly technical or nit-picking approach”; Poshteh v Kensington RLBC [2017] UKSC 36, [2017] AC 624 at [22]; Alibkhiet at [36] to [38]; and Abdikadir at[ 59]).

Nevertheless, even allowing for a degree of flexibility, a local housing authority has a positive obligation to show that in offering an out of borough placement it has complied with its duty under section 208(1): Nzolameso at [36] and [37]; Abdikadir at [37(iii)]).

One way – but only one way – in which a housing authority may demonstrate that it has discharged this duty in any given case is by having a lawful policy for the procurement and allocation of accommodation and by providing evidence explaining how it had followed that policy (Abdikadir at [59]). It follows that an authority which does not have such a policy, or which does not provide evidence that the policy was followed, may be in difficulty in showing that it has discharged its section 208(1) duty.

But that is not necessarily so. Ultimately the question is not whether the Council had a lawful policy which took proper account of the 2018 Guidance (it appears that it did not) or whether it followed that policy. Rather it is whether the Council has demonstrated, on the balance of probabilities, that the accommodation offered to Ms Moge in Feltham (i.e. the Flat) was the accommodation closest to where she was previously living which was available to the Council and suitable for Ms Moge and her son, who required a two bedroom flat, at the date of the offer.

In considering whether the Council has discharged that burden upon it, a balance needs to be struck between, on the one hand, requiring local authorities to evidence and explain their decisions so that they can be understood (and if appropriate, challenged) by applicants and, on the other hand, what has been described as an overly technical or nit-picking approach (Nzolameso at [31] to [32]). Fairness requires, moreover, that the evidence adduced by a local authority should be assessed in the light of the issues raised by an applicant when challenging the lawfulness of an offer of accommodation, particularly when (as here) the applicant is represented throughout by experienced housing solicitors.

Thus in Cramp v Hastings BC [2005] EWCA Civ 1005, [2005] HLR 786, Lord Justice Brooke said:

“As I have shown, the 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 ex p Bayani 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. …”

This passage was applied in Abdikadir at [52], where Lord Justice Lewison observed that “the court should be wary of imposing on the reviewing officer a duty to enquire into matters that were not raised”, and in Zaman at [59] to [62].

This principle is particularly relevant in the present case. Ms Moge was represented from the outset by experienced housing solicitors, who made representations on her behalf before the Council’s “minded to letter” dated 28^th July and then again before the reviewing officer’s decision letter dated 12^th August 2021. Nowhere in those representations was there any suggestion that the Council had failed in its duty under section 208(1), either by failing to carry out adequate searches or indeed at all. The only point made in the initial representations was that Ms Moge had not refused the Council’s offer of accommodation. That point was then supplemented by a suggestion that the Flat was unsuitable because of its distance from Ms Moge’s places of work within the borough – but that is a separate point.

It was only when the matter was appealed to the County Court that it was first suggested that the Council was in breach of its duty under section 208, and even then that was the fourth of five grounds which, as is clear from the judge’s judgment, occupied very little time at the hearing, which was mainly concerned with whether the Council was required to disclose its housing file and whether the review decision was wrong to conclude that Ms Moge had refused the offer, points which the judge decided against Ms Moge and which are not challenged on this appeal. Moreover, it was no part of Ms Moge’s case in the County Court that the Council had failed to comply with the 2018 Guidance or that the 2006 Guidance referred to in the review decision was out of date.

In my judgment, the way in which the focus of the case has been completely transformed on its journey from the review decision to the Court of Appeal has two consequences. First, in accordance with the principle identified in Cramp, Abdikadir and Zaman, we should be wary of criticising the reviewing officer for not having made detailed enquiries as to precisely what searches were carried out before the Flat was offered to Ms Moge. He was entitled to focus on the evidence about whether Ms Moge had or had not refused the offer. It would not be surprising if, by the time the section 208 point was finally taken, precise evidence about what searches Council employees had made, or why other properties which might have been available were not offered to Ms Moge, was harder to obtain than if the point had been taken at the outset.

Second, I would admit Ms Grant’s witness statement. In my view that is what justice requires when the Council is now facing, effectively for the first time (albeit that it was a minor part of Ms Moge’s case in the court below) a complaint that adequate searches were not carried out to find accommodation for her, either within the borough or outside the borough which was closer than the Flat in Feltham. Once that evidence is admitted, it is clear that there is at least evidence of the general practice carried out on a daily basis by Ms Grant’s team. That evidence, which Lord Justice Snowden has set out at paragraph 102 above, is to my mind entirely convincing as a summary of their general practice. Why would the relevant officers not do what Ms Grant describes? That is their job. It is true that the statement is in the present tense and that there is no evidence from the officers themselves. But such criticisms apply a high degree of forensic scepticism to Ms Grant’s evidence which is inappropriate in a case of this nature. Ms Grant’s witness statement would be thoroughly misleading if it were carefully drafted to say only that this is what the officers do now, while saying nothing about what they did at the relevant time. In my view that possibility can be disregarded.

I consider, on a fair reading of Ms Grant’s evidence, that she is describing, and intends to describe, the practice which applied at the relevant time in the spring and summer of 2021. If that practice was followed, and I see no reason to doubt that it was, it is hard to see what more should have been done, and Mr Vanhegan did not suggest otherwise. Accordingly I would reject the submission that there is nothing to show what the Council did to discharge its duty to Ms Moge.

In the light of these considerations, I turn first to the question whether the Council has shown that there was no available accommodation within Ealing itself. It has not been contended that there was suitable private-sector accommodation within the borough which ought to have been offered to Ms Moge. Nor has there been any challenge to the Council’s decision that Ms Moge did not qualify for accommodation within the borough in accordance with the Council’s Allocation Policy. Mr Vanhegan’s submission as to accommodation within the borough was that the Council ought to have checked the stock of housing available to it under Part VI of the Act when discharging its duty to Ms Moge. I would reject that submission for the reasons given by Lord Justice Snowden at paragraphs 131 to 138 above.

Accordingly the Council has discharged the burden upon it as regards accommodation within the borough.

As for private-sector accommodation outside the borough, it is obvious that the Council did look for such accommodation. The Flat in Feltham was located in an adjacent borough and can only have been the result of a search of the kind described by Ms Grant. The acute difficulties which London local authorities face in securing or arranging suitable accommodation which is in very short supply, and for which there is enormous demand, are well known. The fact that, at any given time, very few if any properties will be available whatever efforts are made to locate them is entirely credible. Equally, there will at any given time be a number, and perhaps a large number, of applicants seeking accommodation, all of whose interests have to be taken into account by the local authority.

It is clear that the reviewing officer (Mr Shariff) was alive to the question whether other suitable accommodation would have been available which could have been offered to Ms Moge. The review letter (and the earlier minded to letter) stated in clear terms that “the property offered to Miss Moge on the 25^th of May 2021 (i.e. the Flat) was the only 2 bedroom accommodation available at the time of offer”. I would attach no significance to the fact that the date of 25^th May 2021 was the date when the Council treated Ms Moge’s failure to sign a lease as a refusal of the accommodation, rather than 11^th May 2021, the date when the accommodation had first been offered. It appears from the email from Daniel Teixeira dated 7^th May 2021 that there were two two-bedroom properties available in the private sector in boroughs adjacent to Ealing, one of which was too expensive for the applicant and the other was the Flat.

I would hold that although the evidence adduced by the Council on this issue is less than perfect, it is sufficient to show on the balance of probabilities that the Flat was indeed the closest available suitable accommodation, after proper enquiries were made, and that the Council has therefore discharged the burden upon it of showing that it complied with its duty under section 208.

The only matter which has caused me to hesitate is the email dated 7^th May 2021, four days before the Flat was offered to Ms Moge, to which Lord Justice Snowden has referred at paragraph 31 above. That email referred to six direct let properties available, of which three had two bedrooms and were therefore potentially suitable for Ms Moge. Two of them were within the borough, which meant that Ms Moge did not qualify for them, and one was in the neighbouring borough of Hillingdon, although its precise location is not stated. We do not know, therefore, whether it was closer to Ms Moge’s previous address than the Flat (either as the crow flies or by reference to travelling time on public transport) or, if it was, why it was not offered to her. There are of course a number of reasons why it may not have been, including that another family had greater priority or that it was (like the Cricklewood property) too expensive for her, although it is also possible (if it was closer) that it was simply overlooked when the offer of the Flat was made.

In these circumstances it might be possible to say that the burden is on the Council to show that the property actually offered was closer than anything else which was available, and that it is not shown that the Hillingdon property was further away or that there was some other good reason why it was not offered to Ms Moge. In my view, however, that would be an unduly rigid and unfair approach. The section 208 issue was not raised by Ms Moge’s solicitors during the course of the review, and the email referring to the property in Hillingdon does not appear to have been the subject of any argument in the court below. If the section 208 issue had been raised during the review, the reviewing officer would have had the opportunity to investigate the position more fully than he did. If the email had been relied on in the court below, the Council would have had the opportunity to address it in evidence. In the circumstances I do not think it would be fair to allow the appeal on the basis that the Council has failed to explain why the property in Hillingdon was not offered to Ms Moge.

As Lord Justice Snowden has pointed out, the Council’s current policies do not refer to the relief duty or to the 2018 Guidance. If the Council is to avoid difficulties in other cases, its policies will need to be updated and it will need to introduce a system to ensure that it is able to produce evidence of compliance with them. Nevertheless, in this case the Council has in my judgment just about provided sufficient evidence to show on the balance of probabilities that it complied with its duty under section 208(1) in offering the Flat to Ms Moge. Accordingly I would dismiss the appeal.

I am grateful to Lord Justice Snowden for his clear exposition of the law and to Lord Justice Males for his analysis of the evidence provided by the Council and the conclusions drawn from it, with which I agree. I am satisfied that the Council has shown on the balance of probabilities that it complied with its duty under section 208(1) in offering the Flat to Ms Moge.

I also would dismiss the appeal.