Rabah Ghaoui v London Borough of Waltham Forest

This appeal concerns the role of the Human Rights Act 1998 in the context of Part VII of the Housing Act 1996 (‘the 1996 Act’), which places duties upon local authorities in relation to homeless persons. Specifically, how should human rights considerations be factored into the assessment of suitability of accommodation?

The Appellant Mr Rabah Ghaoui is a married man with two young children. The family lived in the area of the Respondent local authority, the London Borough of Waltham Forest, but in April 2019 they were given notice to leave their privately rented accommodation. The following month, the Appellant applied to the Respondent for assistance with accommodation. In September of that year, he placed the older child in the nursery of an Academy, which is in the Respondent’s area. It is a private fee-paying school, open only to those of the Islamic faith.

In March 2020, the family was evicted and the Respondent provided temporary accommodation in the Harlow area. That was some 20 miles from their previous address, which inevitably made it harder for the parents to attend their workplaces in London and for the child to go to school.

In November 2021, the Respondent confirmed that it owed the Appellant a main housing duty under section 193 of the 1996 Act. It offered the family a 12-month fixed term assured shorthold tenancy with a private landlord, again in Harlow. The Appellant instructed solicitors. In December 2021 they requested a review of the suitability of the offered accommodation and in April 2022 made representations. The central point was that the property was unsuitable by reason of its distance from the parents’ places of work and the child’s school. They explained that it was the Appellant’s “preference that [the child] should attend a Muslim school rather than a multi-faith primary school”. The submission set out the relevant legal framework, without making any reference to human rights law.

In early September 2022, the younger child entered the nursery at the Academy.

On 13 September 2022, the reviewing officer spoke to the Appellant. One part of the discussion concerned schools. The officer said that there were local schools in Harlow, to which the Appellant replied that the Respondent was “not considering their rights”. The officer said that there was no legal duty to provide accommodation that allowed the children to attend a specific religious school. The next day, she issued a ‘minded to’ letter in which she said that she was likely to find that the offer was suitable. The lengthy letter included these passages about schooling:

On 30 September 2022, the Appellant’s solicitors responded to the ‘minded to’ letter, but they made no reference to the above passages. On 17 October 2022, the officer issued her review decision, which included those passages. She found that the offered accommodation was suitable.

On 7 November 2022, the Appellant filed an appeal to the County Court under section 204 of the 1996 Act. He argued that the Respondent had failed to take into account the family’s rights under Article 9 of the European Convention on Human Rights, and had failed to consider the “human rights implications” of its decision, as required by paragraph 1.28 of the Code of Guidance. It was also said that the Respondent was wrong to class faith education as not being a “need” and in doing so failed to treat it as a relevant circumstance.

The appeal hearing took place on 28 February 2023 before Recorder Deal KC, who handed down an admirably concise and considered judgment on 3 March 2023.

While summarising the review decision, the recorder remarked that the officer’s choice of language in the cited passages could be described as censorious and that she could appreciate why the Appellant might regard it as dismissive of his entitlement to send his children to a private school of his choosing. She made the same observation about the reference to “any reasonable parent”. However, the recorder found that the choice of wording was not relevant to the questions of law that arose on the appeal, and it was not submitted otherwise to her or to us.

I agree with the recorder’s treatment of this unfortunate aspect of the case. There is much to be said for plain speaking in decision-making but there was no need for the officer to speculate about the Appellant’s motives for choosing a particular school or to make gratuitous remarks about the reasonableness of his parenting. Comments of that kind may foster appeals, even if they do not actually assist appellants.

As to the substance of the appeal, the recorder noted that an appeal under section 204 must be on a point of law. A failure to refer to a Convention right (or indeed another statutory provision) was not an error of law. It would be different if an appellant could show a failure to have regard to a relevant factor, but even then review decisions should not be subjected to the type of analysis that may be applied to a contract, a statute or a judgment: Holmes-Moorhouse v London Borough of Richmond on Thames [2009] UKHL 7 at [47-51]. Accordingly, the recorder observed that:

Addressing the core of the Appellant’s case, the recorder accepted that the Respondent had to take account of any human rights implications in the exercise of its powers. She accepted that a parent electing to send their child to a single-faith school is a manifestation of religious belief. The real question on the appeal was whether the officer’s treatment of that issue was an interference with the right protected by Article 9. She could not see a proper basis for concluding that it was. No-one was interfering with the Appellant’s preference for a single-faith school and the officer was entitled to place less weight on that preference than the Appellant himself did. Were it otherwise, it would elevate the importance of exercising a public service that respects a believer’s freedom to choose a single-faith school into a positive obligation on that authority to make it easier for him to do so. There was no authority in support of that argument. In summary:

Accordingly, there had been no interference with the Appellant’s right to manifest his faith by choosing the Academy for his children. The review decision was not unlawful and did not contravene the requirement in the Code of Guidance that human rights implications needed to be considered. Alternatively, without deciding the point, the recorder stated that even if there were an interference, it might well be justified in the interests of the wider community in the allocation of limited housing.

The recorder further found that, in saying that schooling at the Academy was not a ‘need’, the officer was not marking down the choice of school as a factor but simply concluding that it was not as important to suitability as the Appellant considered it to be.

Accordingly the recorder dismissed the appeal and confirmed the review decision.

On 12 September 2023, Nugee LJ granted permission to appeal by a narrow margin. He doubted whether there was any flaw in the review decision or the judgment, but observed that the case raised an important point of principle that had not been previously considered.

In December 2023, the Appellant and his family obtained a private sector tenancy closer to the Academy and were thereafter not homeless or in need of assistance from the Respondent. As a consequence, the outcome of the appeal has become academic for him. However, after an exchange of written submissions and consideration of the relevant authorities, Andrews LJ directed that the appeal should proceed to a hearing. She considered that it raised an issue of general public importance affecting local authorities generally when discharging their homelessness duties, namely what is the correct approach to determining the suitability of accommodation when the applicant’s circumstances engage rights under the ECHR, in particular Article 9 and Article 2 of the First Protocol (‘A2P1’)?

Before considering the submissions of the parties, it is convenient to refer to the principal provisions in the fields of housing and human rights law.

The provisions of Part VII of the 1996 Act were summarised in the recent judgment of Lewis LJ in Webb-Harnden v Waltham Forest LBC [2023] EWCA Civ 992; [2023] HLR 45 at [4-10]. Reference need only be made to the following provisions. Section 206 requires that the accommodation offered in discharge of housing functions under Part VII is suitable. Section 208 provides that authorities should secure that accommodation is available in their district so far as is reasonably practicable. Section 210 empowers the Secretary of State to specify by order matters to be taken into account or disregarded in determining whether accommodation is suitable for a person. That was done in the Homelessness (Suitability of Accommodation) (England) Order 2012, SI 2012/2601, which sets out at Article 2 a range of matters to be considered. There is also statutory guidance, the Homelessness Code of Guidance for Local Authorities (‘the Homelessness Code’), issued under section 182, on the suitability of offers in the private rented sector (paragraphs 17.12-17.30) and the location of accommodation (paragraphs 17.48-17.61).

Section 11 of the Children Act 2004 provides that when making decisions about the suitability of accommodation, local housing authorities must consider the duty to safeguard and promote the welfare of any children. That does not make the children’s welfare paramount or even a primary consideration, but it requires the decision-maker to identify their principal needs and to have regard to the need to safeguard and promote them when making the decision, and it must be clear from the decision that proper consideration has been given to the relevant matters required by the 1996 Act and the Homelessness Code: Nzolameso v City of Westminster Council [2015] UKSC 22, [2015] 2 All ER 952 at [27-28 and 32].

Turning to human rights considerations, section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The Articles relied on in this case are Article 9 and A2P1.

Paragraph 1.20 of the Homelessness Code provides that housing authorities and other agencies that carry out public functions on behalf of housing authorities must do so in a way that is compatible with Convention rights. Paragraph 1.28 requires housing authorities to consider the human rights implications of their actions in the exercise of their powers, or risk having their decisions overturned as a result and the planning and delivery of their services being affected.

There is very little direct authority on the substantive application of human rights considerations to housing decisions. In R (E) v Islington LBC [2017] EWHC 1440 (Admin), [2018] PTSR 349, damages were awarded for a violation of A2P1, where the local housing authority had failed to ensure that a child placed outside its district had a school place available.

The most relevant authority for our purposes is the decision of this court in Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925, [2005] HLR 1 (‘Codona’). That concerned the question of whether an offer to a gypsy family of short-term bricks-and-mortar accommodation was suitable when they wished for cultural reasons to live in caravan accommodation. The appellant argued that the failure to secure her accommodation on a caravan site, even on a temporary basis, violated her rights under Articles 8 and 14. The court held that the local authority must give special consideration to securing accommodation that would facilitate the family’s traditional way of life and that, when considering whether accommodation was suitable they must carefully examine the claim for special consideration of their housing needs. It went on to find that, as it could be assumed that the family would only be in bricks-and-mortar accommodation for a short time, there was no violation. The court, through Auld LJ, made some reference to the significance of human rights considerations. At [42] he observed that suitability of offered accommodation in a homeless case has the gloss of Article 8, which requires a balancing of countervailing factors where they exist. At [55-56] he addressed the submissions made to the judge in this way:

In relation to the process undertaken by decision-makers we were referred to R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100 (‘Denbigh’). That was a challenge to a school uniform policy that did not permit a pupil to attend school wearing the jilbab. She claimed violations of Article 9 and A2P1. The Court of Appeal overturned the judge’s dismissal of the claim, but the House of Lords restored the judge’s order. Its observations about process are relevant. At [29] Lord Bingham remarked that the focus of the Convention is not on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights had been violated. At [31] he said this, in agreement with an article criticising the Court of Appeal’s approach:

At [66] Lord Hoffman described the Court of Appeal as having required the school to set itself an examination paper of human rights questions. At [68] he continued:

Against this background, I turn to the appeal in the present case. We are called upon to determine whether the review decision was lawful, rather than assessing the decision of the recorder: Danesh v Kensington & Chelsea RLBC [2006] EWCA Civ 1404; [2007] 1 WLR 69 at [30].

We received helpful written and oral submissions from Ms Davies KC and Mr Gannon for the Appellant and from Mr Mullin and Ms Taylor-Waller for the Respondent.

The main element of the Appellant’s case falls under Ground 1, which contends that the review decision was unlawful because it did not recognise that his preference for single-faith education was a freedom protected under Article 9 and did not then go on to assess suitability on that footing. Ground 2 frames the argument with reference to the obligation in the Homelessness Code to consider the human rights implications of decisions. Ground 3 asserts that a dismissive characterisation of the preference as not being a ‘need’ failed to give proper recognition to the freedom protected by Article 9.

In the course of her submissions, Ms Davies did not seek to argue that Article 9 or A2P1 mean that accommodation could only be suitable if it was near a single-faith school. Nor did she make a conventional public law rationality argument to the effect that the decision was one no reasonable decision-maker could have reached. Instead she submitted that there was a third category, a human right that should have been recognised. The reviewing officer should have realised that the offer of accommodation in Harlow was an interference with the Article 9 freedom and then have looked for justification. The officer had to recognise that the right was engaged and to give it appropriate respect. The lack of awareness of this state of affairs and the failure to engage in a structured decision-making process rendered the decision unlawful. Ms Davies acknowledged that, had the officer taken a more subtle approach, her submission would be a difficult one, but here the outcome was a clear breach. As to A2P1, this was not the Appellant’s primary case, but whilst the housing authority was not an education authority, the same local authority performed both functions; more to the point, schooling was a relevant factor for the housing authority to consider. Overall, the Respondent was required to do more to accommodate the Appellant’s rights, including by considering deferring the decision in case more suitable accommodation became available.

For the Respondent, Mr Mullin observed that Article 9 had not featured in the Appellant’s representations until the first appeal. His fundamental submission was that Ground 1 is fatally misconceived because the reviewing officer’s task was not an academic one, concerning the ambit of the Appellant’s Convention rights. She was not required to theorise about the nature and extent of rights under Article 9 and A2P1 and reach a conclusion about them, but to assess the suitability of the accommodation offered, in light of the representations made by the Appellant, and to reach a decision. As stated in the Denbigh case, Article 9 does not entitle a person to have a decision taken in a particular way. Here, the Appellant is not saying that the decision is unlawful because there has been a breach of Article 9. Rather, he says that the decision is unlawful because the decision maker has not considered and recognised the significance of the right. That is the formalising fallacy that was deprecated in Denbigh and confuses the approach to human rights with the public sector equality duty.

If, contrary to this main submission, it is necessary to move to the substance of the decision, Mr Mullin argued that there had been no interference with the Appellant’s rights, indeed it would be difficult to see an authority that was trying to relieve a situation of homelessness as bringing about a violation. The reviewing officer clearly appreciated the strength of the appellant's preference in regard to schooling and she repeatedly referred to the issue in the review decision. It cannot be argued that she left it out of consideration, and she was not obliged to prioritise it. She referred to the statutory guidance in general terms. She was not carrying out a function “in relation to education and teaching”, so A2P1 did not apply. This court has repeatedly held that housing authorities do not have to postpone decisions in the ‘micawberish hope’ that something better will turn up: Alibkhiet v Brent LBC [2018] EWCA Civ 2742.

I have no difficulty in concluding that there was no error of law in the review decision, and that the recorder was right to say so.

An assessment of suitability calls for a decision-maker, whether a housing officer or a reviewing officer, to identify all the relevant factors and to give them the weight that seems appropriate in their professional judgement. In doing so, they are guided by the terms of the primary and secondary legislation and the code of guidance, but the decision is a practical one, rooted in the circumstances of the individual case. It is made within a legal framework and has legal consequences, but the obligation is to reach a sound decision, not to carry out a legal analysis.

Homelessness decisions may raise issues that engage a Convention right, but instances where a decision designed to relieve homelessness will amount to a violation will surely be very rare. That is reflected in the virtual absence of decided cases involving human rights arguments about suitability, even under Article 8, and the present case is apparently the first in which Article 9 has been relied upon. What this shows is that in the quarter of a century since the Human Rights Act, lawyers and judges have recognised that decisions of this kind are fact-based evaluations and not legal constructs. The provision in Paragraph 1.20 of the Homelessness Code that housing authorities should consider the human rights implications of their actions does not compel decision-makers to identify rights and potential violations, nor does it disturb the message in Denbigh that human rights are respected through outcomes not processes. The references in Codona to the obligation on the authority to give “special consideration” to meeting Mrs Codona’s housing needs and to her claim being “fortified by the Art. 8 effect” indicate that factors engaging a Convention right are to be given full and proper consideration, not that they must attract undue, still less predominant, weight by virtue of their Convention label. As Auld LJ said, it is all part of the same question, lawful application of a proper definition of suitability to the circumstances of the case.

Applying these principles to the present case, I agree with Mr Mullin’s response to the main ground of appeal. The claim that the decision-maker was bound to recognise that she was dealing with a human right as such – Ms Davies’ third category – sits in a no man’s land between a claim of violation and a claim of irrationality. It is contrary to Denbigh, by focusing on process and not outcome, and by insisting that the decision-maker has to engage in a structured human rights analysis rather than an ordinary exercise of identifying and weighing up relevant factors.

Once the matter became the subject of an appeal, the recorder held that there had in fact been no interference with Article 9. She was entitled, indeed right, to reach that conclusion on the facts of this case for the reasons she gave: the Appellant had no right to expect the Respondent to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property. The question of justification therefore did not arise. Had it done so, the Appellant would likely have faced an insuperable task in showing that his faith-based preference should give him priority over other homeless persons.

Ground 2 fails for the reasons I have given above. Paragraph 1.20 of the Homelessness Code requires officers to address the substance of the issue giving rise to a human right; it does not require the officer to follow a particular process.

As to Ground 3, I again agree with Mr Mullin. Although the officer did not accept that single-faith education was a need, she paid considerable attention to the schooling issue and reached a decision about suitability that was plainly open to her.

For these reasons I would dismiss the appeal.

I agree.

I also agree.