London Borough of Enfield v A

The issue on this appeal is the lawfulness of an out of borough placement made available to an applicant for homelessness assistance. There are two substantive grounds of challenge. First, it is alleged that the London Borough of Enfield (“Enfield”) failed to search for available accommodation closer to the applicant’s former home than the accommodation which was in fact made available. Second, it is said that Enfield failed to comply with its statutory duty to notify the local authority in whose district the applicant was placed within the statutory time limit. If either or both these challenges are well-founded, there is potentially a further issue about the relief that the court can grant.

Ms A was born on 18 June 1999. While she was living in Enfield, she was the victim of domestic abuse perpetrated by her ex-partner, MB. She was badly assaulted in June and July 2022; for which MB was convicted in January 2023 on three counts of assault occasioning actual bodily harm. He was given a custodial sentence of 20 months and was the subject of a restraining order for 5 years.

On 4 August 2022 Ms A applied to Enfield for homelessness assistance under Part 7 of the Housing Act 1996 (“the Act”); and on 15 November 2022 Enfield notified Ms A that it accepted that it owed her the full housing duty under section 193 (2) of the Act.

It is common ground that, owing to her fear of violence at the hands of MB, his family and friends, Ms A did not wish to be accommodated in Enfield. On 17 April 2023 Enfield offered Ms A temporary accommodation in Studio B. Studio B is located in the neighbouring London Borough of Haringey and is approximately 1 ½ miles from Enfield. Ms A accepted the offer and moved in but requested a review of the suitability of the offered accommodation.

During the course of the review, she was represented by Hodge Jones & Allen, highly experienced solicitors with considerable housing expertise, who made representations on her behalf on no less than six occasions. On the question of suitability, they raised five points:

In their representations to Enfield, Ms A’s solicitors highlighted the domestic abuse that Ms A had suffered at the hands of MB. They said that she remained vulnerable to abuse and harm from MB and his associates; and as a result, was unable to reside anywhere within Enfield. Ideally, she wished to be placed in Waltham Cross in Broxbourne or Northwood in Hillingdon. They stated that although Studio B was in Haringey, it was not suitable because the 217 bus route that Ms A used to visit her mother ran through areas where her ex-partner and his family resided; and that MB and his associates were known to use that bus route. She had not, however, been exposed to violence or threats of violence at Studio B. The points made about the location of Studio B were specific to that property. It was not suggested that Ms A either could or should have been placed in accommodation closer either to her previous address or to Enfield.

The review was carried out by Ms Lisa Colosso. In her decision letter dated 21 July 2023, she began by setting out the information which she had considered. This included the Homelessness Code of Guidance 2006, [sic, (which is assumed to be a typographical error)] the Homelessness (Suitability of Accommodation) Order 2012, Enfield’s placement policy, Ms A’s housing file and the representations made on her behalf by her solicitors.

The only part of Enfield’s placement policy relevant to this appeal is paragraph 4.4 which states:

“Enfield Council’s policy is to house residents in accommodation within the borough wherever possible. However, there are occasions where we will support households to move to accommodation outside the London Borough of Enfield:

•

Where there is an ongoing threat to the safety of a household if they remain in Enfield

•

Where there is no suitable affordable accommodation within Enfield available.

Where we are offering accommodation outside Enfield, we will support households in finding accommodation out of the borough. Where possible this will be close to Enfield, taking account of affordability and other factors set out in this policy. However, in some cases we may need to source accommodation further away due to a lack of suitable and affordable accommodation in the area.”

The reviewing officer considered the points that Ms A’s solicitors had made about the bus route and rejected them; not least because there were other ways for Ms A to use public transport to visit her mother. In paragraph 41 of the decision, the reviewing officer stated:

“Understandably you are fearful for your safety and would like to live in close proximity to your mother, however both you and the professionals involved in your case have been clear that you cannot safely reside in Enfield. As such, the Council had no option but to move you out of the area. We have however, attempted to alleviate your distress and the possibility of isolation from your support network by accommodating you in a neighbouring borough, and, in particular, an area which [borders] Enfield.”

Under the heading “Location” the review decision stated in paragraph 47:

“In the first instance I considered section 208 of the Housing Act 1996 which states that “so far as reasonably practicable a local authority shall in discharging their housing functions under this part secure that accommodation is available for the applicant in their district.” However, as discussed [with] you prior to allocation you advised the Council that you are unable to reside in the London Borough of Enfield due to a risk of violence and threats of violence from MB and his family and friends. You confirmed that you wished to remain in London so that you could continue to access support provided by your family who reside in Enfield. Specific areas of interest were Northwood in Hillingdon and Broxbourne (which is outside of London). I note that a DASH Risk Assessment completed on 15 August 2022 advised that Haringey was also a consideration. Therefore, while I acknowledge that your placement is not local, I am satisfied that it was at your request. I am further satisfied that you were placed in a borough that you had originally expressed an interest in.”

A DASH Risk Assessment (to which paragraph 47 referred) is a multi-agency tool used for assessing the risk of domestic abuse, stalking, harassment and honour-based violence. Although we have not seen the DASH Risk Assessment itself, subsequent documentation (which we have seen) indicates that the Assessment advised that Haringey was an area which Ms A was willing to consider.

In paragraph 48 the reviewing officer said:

“I have confirmed that [Studio B] is not in an isolated position. According to Google Maps you are a 6-minute walk away from Wood Green Shopping Centre which provides access to numerous shops and amenities. Public transport links are good. The 144, 232, 121 and 329 buses run through to Enfield thus allowing you to remain in contact with your support in the area. Wood Green Tube station and Alexandra Palace & Hornsey Train Stations also offer routes back into the borough and into central London.”

The reviewing officer went on to describe the severe housing shortage in Enfield, and the increasing number of applications for homelessness assistance. Her ultimate conclusion was that Studio B was suitable accommodation.

On 4 August 2023 Ms A appealed to the county court against that decision.

On 8 November 2023 Enfield notified Haringey LBC that Ms A had been placed in their district.

On 8 August 2024 HHJ Roberts allowed Ms A’s appeal and quashed the decision.

Events have moved on since then. Ms A is no longer at risk of violence from her ex-partner, and, in addition, she gave birth to a child on 13 December 2024. Enfield therefore reassessed the suitability of the accommodation in view of the increase in the household. Their decision was given on 31 December 2024; and is also the subject of an appeal to the county court (which is not before us). Nothing I say in this judgment should be taken as pre-determining the outcome of that appeal.

With the permission of Newey LJ, Enfield now appeals against the order of HHJ Roberts.

The powers and duties of a housing authority as regards the homeless are set out in Part 7 of the Act. They are well-known and need not be set out fully. In exercising those powers and discharging those duties the authority must “have regard to such guidance” as may be given by the Secretary of State: section 182.

The full housing duty, which Enfield accepts it owed to Ms A, is contained in section 193 (2). That duty is a duty “to secure that accommodation is available for occupation by the applicant.” The duty may only be discharged in one of three ways, of which the relevant one for present purposes is by securing that “suitable accommodation” is available for the applicant: section 206.

Section 210 gives the Secretary of State power to specify (a) circumstances in which accommodation is or is not to be regarded as suitable for a person and (b) matters to be take into account or disregarded in determining whether accommodation is suitable for a person. The Secretary of State has exercised that power by making a number of orders, including the Homelessness (Suitability of Accommodation) (England) Order 2012. Article 2 of that 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;…”

Section 208 is at the heart of this appeal and so needs to be quoted in full:

“(1)

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

(2)

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

(3)

The notice shall state—

(a)

the name of the applicant,

(b)

the number and description of other persons who normally reside with him as a member of his family or might reasonably be expected to reside with him,

(c)

the address of the accommodation,

(d)

the date on which the accommodation was made available to him, and

(e)

which function under this Part the authority was discharging in securing that the accommodation is available for his occupation.

(4)

The notice must be in writing and must be given before the end of the period of 14 days beginning with the day on which the accommodation was made available to the applicant.”

Section 202 gives an applicant the right to request a review of certain decisions. These include any decision by the local authority as to the suitability of accommodation: section 202 (1) (f). But they do not include any failure to give notice as required by section 208 (4), which, in any event, cannot be described as a “decision” by the local authority.

An applicant who is dissatisfied with a review decision is entitled to appeal to the county court “on any point of law arising from the decision”: section 204. A point of law arises from a decision if it concerns or relates to the lawfulness of the decision; and in deciding that question the court has jurisdiction to consider the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. An appeal is not limited to points of law that might broadly but imprecisely be described as “points of housing law” but extends to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. These include challenges on grounds of procedural error, the extent of legal powers (vires), irrationality, and inadequacy of reasons:  James v Hertsmere BC [2020] EWCA Civ 489, [2020] 1 WLR 3606 at [31]. That said, an appeal under section 204 is not a claim for judicial review: Adesotu v Lewisham BC [2019] EWCA Civ 1405, [2019] 1 WLR 5637.

As mentioned, the Secretary of State has power to give guidance to local housing authorities. His guidance on the question of suitability was contained in Chapter 17 of the Homelessness Code of Guidance in force at the time of the review decision. (The Code has since been updated but its substance remains the same). Paragraph 17.4 points out that the location of the accommodation will always be a relevant factor. Paragraph 17.6 states:

“Account will need to be taken of any social considerations relating to the applicant and their household that might affect the suitability of accommodation, including any risk of violence, racial or other harassment in a particular locality. Where domestic abuse is involved and the applicant is not able to stay in the current home, housing authorities may need to consider the need for alternative accommodation whose location can be kept a secret and which has security measures and staffing to protect the occupants.”

Paragraph 17.50 states:

“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.”

Paragraph 17.51 states:

“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.”

Paragraph 17.57 states:

“In some circumstances there will be clear benefits for the applicant of being accommodated outside of the district. This could occur, for example, where the applicant, and/or a member of their household, would be at risk of domestic abuse or other violence in the district and need to be accommodated elsewhere to reduce the risk of further contact with the perpetrator(s).”

The leading case on the duty, so far as practicable, to secure that accommodation is available for an applicant in the local authority’s own district is Nzolameso v Westminster City Council [2015] UKSC 22, [2015] PTSR 549. The applicant, a single mother with serious health problems, lived in Westminster with her five children aged between 8 and 14. In 2012, following her eviction from the house she rented in the area, she and her family became homeless. The local housing authority explained that since there was a severe shortage of accommodation in Westminster it was not reasonably practicable to offer her accommodation within its district and it offered her temporary accommodation which it considered suitable in Bletchley, near Milton Keynes, some 40 miles away. On a review under section 202 the housing authority’s reviewing officer upheld its decisions that the premises were suitable and that it had discharged its duty, observing that the housing authority was suffering a severe shortage of accommodation and therefore some temporary accommodation it offered had to be located outside its district.The authority produced no evidence of their policy in relation to the procurement of accommodation in order to fulfil their obligations under the 1996 Act, nor of the location of that accommodation, nor of the instructions given to the temporary lettings team as to how they were to decide which properties should be offered to which applicants. Lady Hale, who gave the only judgment, quoted from the then current Code and the supplementary guidance given in November 2012. Paragraph 49 of the latter document stated that “Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was living.” Lady Hale then said at [19]:

“The effect, therefore, is that local authorities have a statutory duty to accommodate within their area so far as this is reasonably practicable. “Reasonably 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.”

In my view the third of the quoted sentences did no more than reflect the supplementary guidance given by the Secretary of State, as Newey LJ noted in Zaman v Waltham Forest LBC [2023] EWCA Civ 322, [2023] PTSR 1643 at [47] (iii). Lady Hale was not laying down some judge-made law. To that extent, therefore, I respectfully question whether the explanation given by Males LJ in Moge v Ealing LBC [2023] EWCA Civ 464, [2023] PTSR 1678 at [142] (“a judge-made expansion of section 208”) is correct.

It is not entirely clear from paragraph [19] of Lady Hale’s judgment whether, in saying that “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…”, she intended the word “this” to refer only to the statutory duty under section 208 (1), or whether it encompassed the supplementary guidance as well. But I do not think that we have to answer this conundrum for the purposes of this appeal.

The problem in Nzolameso was that Westminster had not adequately explained their decision to offer Ms Nzolameso a placement in Bletchley. Lady Hale dealt with this at [36]. She concluded that paragraph by saying:

“The review decision is based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in Westminster and why that had not been offered to her. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible.” (Emphasis added)

Lady Hale went on to say at [38] and [39] that ideally a local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the current year.

This court considered Nzolameso in Alibkhiet v Brent LBC [2018] EWCA Civ 2742, [2019] HLR 15. In that case, Brent had placed Mr Alibkhiet in Smethwick in the West Midlands. At [46] I drew some general points from Lady Hale’s judgment, although none is directly relevant to this appeal. At [47] and [48] I considered the role of a local authority’s policy and said:

“The policy must, of course, be a lawful one; and conformably with public law principles relating to policies there must be room for the exceptional case. But in principle, where a public authority has a lawful policy, then provided that it implements the policy correctly its decision in an individual case will itself be lawful.”

That observation appears to me to have been endorsed in Zaman at [47] (iv).

In Alibkhiet one of the arguments was that Brent had not adequately explained why Mr Alibkhiet had not been offered accommodation in London. Rejecting that argument, I said that Brent had adequately explained why Mr Alibkhiet had not been placed in London or the southeast. I continued at [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. Mr Westgate 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.”

I also agree entirely with Males LJ (with whom Thirlwall LJ agreed) in Moge that, although the guidance applies both where the offered placement is in a different part of the country, and also where it is in a neighbouring London borough, it must be applied with reasonable flexibility. As he put it at [145] (omitting citations):

“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…. 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 … warning against “an overly technical or nit-picking approach.”

That, to my mind, is also borne out by that part of Lady Hale’s judgment in Nzolameso at [19] and [36] which I have quoted above. In paragraph [19] Lady Hale expressly contemplated someone who wanted to move out of the area (as Ms A did) and cases where the applicant did not mind where she was placed. In paragraph [36] Lady Hale did not suggest that the distance between each potential unit of accommodation and the borough to which the application was made should be precisely measured. One of the contrasts she drew was between the placement in Bletchley and a placement “in the whole of Greater London”. She was clearly dealing with the question on a broad-brush basis.

As Males LJ rightly said, the guidance is, after all, guidance, not law, and the local authority’s obligation is to “have regard” to it, not necessarily to apply it as if it were itself a statutory obligation; although if an authority decides to depart from the guidance, it must give reasons for doing so: R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37. In R (Alvi) v SSHD [2012] UKSC 33, [2012] 1 WLR 2208 Lord Clarke put it this way at [120]:

“It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result.”

In addition to some flexibility, I consider that the guidance should also be applied with a degree of realism, and a recognition of the pressures that local authorities with limited resources face in coping with applications for homelessness assistance.

Ground 1 of the grounds of appeal to the county court asserted that Enfield was in breach of its duty under section 208. In my judgment, that contention is plainly wrong. To recap, section 208 imposes a duty on a local authority to make an in-borough placement “so far as reasonably practicable.” In the present case it was not reasonably practicable to place Ms A in Enfield, because she (and the professionals involved) all considered that she would be in danger if she lived in Enfield. Moreover, it was her specific request not to be placed in Enfield. This is therefore a case in which the duty under section 208 (1) was in fact discharged by an out of borough placement.

If one were to expand this challenge to include a failure to comply with article 2 of the 2012 Order, it would still fail. The local authority’s duty under article 2 of the Order is to take into account the location of the offered accommodation and, in the case of an out of borough placement “the distance of the accommodation from the district of the authority.” It is to be noted, at this stage, that what is to be taken into account is the distance between the accommodation and the authority’s district, not the distance between the accommodation and the applicant’s former home. The reviewing officer plainly complied with that duty because she said in terms that in order to alleviate Ms A’s distress and the possibility of isolation from her support network Enfield had accommodated her not simply in a neighbouring borough, but “in particular” in an area which bordered Enfield. I do not regard the instruction to have regard to the distance of the accommodation from the district of the authority to require the authority to measure precisely the linear distance between the two.

That leads to the third widening of the challenge to encompass the Code of Guidance. The review decision stated in terms that the reviewing officer had considered the guidance; and there is no reason to disbelieve her. So, she did “have regard” to it. As I have said, guidance is guidance, not law. It is a tool in good administration, designed to enable local housing authorities to make lawful, robust and fair decisions. But it, too, must be applied with a degree of realism.

It is clear that, unlike the position in Zaman, the local authority’s supposed duty to find accommodation closer to Ms A’s former home was not a point raised in the many rounds of representations made by her solicitors. In their representations there was no objection to a placement in Haringey as such. Nor is this a case like Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] PTSR 1455 in which the applicant’s solicitors pressed the authority to explain what steps it had taken to comply with its duty under section 208. It is, to my mind, almost inconceivable that solicitors with the experience and expertise of Hodge Jones & Allen would have been unaware either of Nzolameso or the Code of Guidance. The fact that the point was not raised before the appeal to the county court is a strong indication that it was not perceived as being of importance at the time.

Although in a normal civil appeal, an appeal court will not usually allow an appeal on a point not argued below, a different approach applies on an appeal to the county court under section 204 against a review decision. The fact that a point taken in the county court was not raised on the review is not in itself fatal; but as has been said many times a court should be wary of imposing upon a reviewing officer a duty to inquire into matters that were not raised in the course of the review (Cramp v Hastings BC [2005] HLR 48 at [14]; Abdikadir at [52]; Moge at [150] to [151]); although a rather harder line was taken in Adesotu at [30] to [33].

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

The DASH Risk Assessment also said that Haringey was an area that Ms A was willing to consider. The guidance states at paragraph 17.50 that 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. Paragraph 17.51 states that an authority should “generally” try to secure accommodation that is as close as possible to the applicant’s former address. Self-evidently “generally” is not the same as “always”. The accommodation in fact offered by Enfield was actually closer to where Ms A was living than either of her preferred alternatives; and was in an area that Ms A was willing to consider. Ms A’s specific request to be placed further away is, in my view, ample justification for Enfield not being required to search for accommodation closer to Ms A’s former address than Studio B. To have placed her closer to the borough boundary or her former address than she was in fact placed would have run the risk that she would once again be in the danger zone.

It is also, in my view, pertinent to consider why the Code of Guidance is expressed as it is. The underlying reason is to avoid difficulties for the applicant; and to enable them to maintain established links. That was the topic that the reviewing officer considered in paragraphs 41 and 48 of her decision. In the first of those paragraphs, she said that one of the reasons for placing Ms A at Studio B was to alleviate the possibility of isolation from her support network. In the second, she concluded that the location of Studio B would enable Ms A to remain in contact with her support in Enfield. The underlying reason for the guidance was thus satisfied. Moreover, the underlying rationale of this part of the guidance also suggests that the simple metric of linear distance as the crow flies is not the be-all and end-all, as I said in Alibkhiet at [80]. The authority must be entitled to consider transport links as well as linear distance.

In addition, I consider that the accommodation offered to Ms A in Haringey complied with Enfield’s placement policy. It is not, as I understand it, alleged that Enfield’s placement policy is unlawful. The existence of a fair and reasonable policy, according to paragraph 17.50 of the Code of Guidance, is another circumstance in which the guidance needs to be applied with flexibility, provided that the policy is correctly applied. Decision-making in accordance with lawful policy was also commended by Lady Hale in Nzolameso at [38] to [40], echoed in Abdikadir at [37] (vii) and Zaman at [47] (v). This is not an extreme case like Nzolameso where Westminster placed Ms Nzolameso in Bletchley; or like Zaman in which, having applied to Waltham Forest for homelessness assistance, Ms Zaman was placed in Stoke on Trent, 160 miles away.

Plainly, a local authority must take reasonable steps to inform itself before making a decision about placement. An authority is not required to scour every estate agent’s window between the offered accommodation and the applicant’s former address (Alibkhiet at [80]); or to investigate every theoretical possibility where something closer may be found (Moge at [144]). I also discussed the extent of the duty in Abdikadir at [51] to [53]. But I went on to say at [54]:

“What steps are reasonable steps to take in order to fulfil that duty is a question of judgment for the housing authority; but its decision on that question is, in my judgment, to be found in the terms of its policies which can be taken to be [the authority’s] considered judgment on the question.”

On the first appeal to the county court, it was surprisingly argued that had Enfield applied its policy, Ms A would have been accommodated within borough. That argument was plainly a non-starter given that it was agreed on all hands that it would have been dangerous for her to be accommodated within Enfield. The suggestion now is that Enfield failed to apply its placement policy because it did not search for accommodation as close as possible to where Ms A was previously living. But that is not what the policy says; for two reasons. First, it says that out of borough accommodation will be “close” to Enfield; not “as close as possible”. Second, the closeness referred to in the policy is closeness to Enfield, not closeness to an applicant’s previous address. Studio B satisfied both criteria. In addition, whether accommodation is “close” to Enfield is a question of fact or an evaluative decision for the reviewing officer to make. If a policy is lawful and is properly applied, that will normally be both a lawful decision and also sufficient to explain why a decision has been taken: Alibkhiet at [48] and [53]. This challenge therefore also fails.

I regret to say that I regard this challenge as an opportunistic technical point devoid of substance. It is a prime example of the judicialisation of welfare services, which has been consistently deprecated. Echoing Lord Carnwath in Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36; [2017] AC 624 at [39], I consider that:

“Viewed as a whole, [the review decision] reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. [She] was doing so, as [she] said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving.”

I would hold that Enfield committed no breach of statutory duty, and no breach of its placement policy. There is no legal flaw in the review decision. This ground of appeal therefore succeeds.

Section 208 (2) and (4) required Enfield as the placing authority to notify Haringey, as the host authority, of the placement. The notification had to be given with 14 days after the accommodation in Haringey had been made available to Ms A. In fact, Enfield did not notify Haringey until 8 November 2023, which was both after the review decision and, indeed, after Ms A had launched her appeal to the county court. There is no doubt, therefore, that Enfield was in breach of its statutory duty to notify Haringey within the statutory time frame that it had placed Ms A within Haringey. Reflecting the way in which Ms A’s ground of appeal on this issue was framed, the judge appears to have decided that breach of the imperative duty in section 208 (2) and (4) was a ground for quashing the review decision. But that is not the end of the inquiry. It is not enough merely to say that there has been a failure to comply with an imperative statutory requirement. As is all too common, Parliament has expressed itself in imperative terms in creating a duty, but has omitted to spell out what consequences flow from a failure to comply with that duty.

In his oral submissions before us, Mr Vanhegan disavowed the argument that he had presented to the judge below. He accepted that the mere fact that there had been a failure to comply with section 208 (2) and (4) did not itself invalidate a review decision. But what was difficult to understand was why he said it did in this case.

The modern approach is illustrated in a number of cases, including R v Soneji [2005] UKHL 49, [2006] 1 AC 340; A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2025] AC 1075; R v Layden [2025] UKSC 12, [2025] 2 WLR 740 and (in the context of homelessness) Norton v Haringey LBC [2025] EWCA Civ 746, [2025] HLR 39 and Fatolahzadeh v Barnet LBC [2025] EWCA Civ 1174. The judge was not referred to this line of authority, much of which post-dated his judgment. Indeed the approach illustrated by these cases was a point to which the court itself drew attention some days before the hearing of this appeal. I am satisfied that both parties have had a proper opportunity to consider it.

In A1 Properties Ltd a claim notice was served claiming the right to manage a block of flats. The statutory requirement was to serve the claim notice on each landlord under a lease of the whole or part of the block. There were three relevant persons: the freeholder of the block, a management company and the intermediate landlord of the communal areas of the block. The claim notice was served on the first two, but not the third. The question was whether that failure invalidated the claim notice. In such a case, the function of the court, as stated by Lords Briggs and Sales at [61] is:

“… to focus … on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement.”

In looking at the question of prejudice, Lords Briggs and Sales said at [92]:

“In both cases, the focus is on the position of the party directly affected by the procedural omission. The omission does not give other persons who are not so affected (for example, other landlords who have been properly served with a claim notice) a right to object to the making of a transfer order if the party who is so affected has not sought to complain about this. There is no good reason to suppose that Parliament intended that a person which has not itself been affected by a procedural omission in relation to another should acquire, by a windfall, a power to thwart the operation of the statutory process which it would not otherwise have enjoyed.”

Mr Vanhegan placed some reliance on the decision of this court in Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] PTSR 1455 in which I discussed at [23] to [35] some of the limitations and problems associated with the duty to notify under section 208 (2) and (4). But that was a case in which the offer of accommodation had been refused, and, on the facts, Ealing was not in breach of its duty to notify. I do not consider that that case helps to answer the question: what are the consequences if the local authority is in breach of its obligation to notify?

The first question is to consider the purpose of the notification requirement under section 208 (2) and (4). There is very little authority on that question. Mr Vanhegan suggested that one purpose of notification under section 208 was to encourage the host authority to provide information to the placing authority about the suitability of the accommodation in question. In a case in which the applicant both accepted an offer of accommodation but also requested a review of the suitability of that accommodation, notification within the time period of 14 days after the accommodation was made available might result in the placing authority being given useful information in time for a review decision on suitability.

One difficulty with this argument is that the host authority is not obliged to do anything in response to receipt of the notification; and whether the host authority either has relevant information or is willing to provide it to the placing authority is pure speculation. In addition, the duty to notify arises when the accommodation is made available to the applicant; and it applies whether or not the applicant asks for a review of the suitability of that accommodation. So, an argument which ties the significance of notification to the review process is, in my view, erroneous.

Second, it was suggested that one purpose might be to alert other authorities (for example the social services authority or the education authority) that the applicant has been placed within the area of the host authority. But section 208 only requires the housing authority to be notified. In some places that authority might be the same local authority as the social services authority or the education authority; but in other places responsibility might be shared between, say, a district council and a county council.

A more plausible explanation of the purpose of notification lies in the allocation of responsibilities of different housing authorities in relation to out of borough placements. Section 198 (4) of the Act provides:

“(4)

The conditions for referral of the case to another authority are also met if—

(a)

the applicant was on a previous application made to that other authority placed (in pursuance of their functions under this Part) in accommodation in the district of the authority to whom his application is now made, and

(b)

the previous application was within such period as may be prescribed of the present application.”

The prescribed period is the aggregate of (a) five years and (b) the period beginning on the date of the previous application and ending on the date on which the applicant was first placed in pursuance of that application in the district of the authority to whom the application is made: Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006 reg. 3.

The effect of these provisions, as applied to this case, is that Enfield retains responsibility for Ms A until the prescribed period has come to an end. The purpose of the notification, on this basis, is that Haringey should know when the period began and when it will end. This ties in with R (Sacupima) v Newham LBC [2001] 1 WLR 563, 575 in which Latham LJ said:

“There is a clear and sensible purpose to be served by the section, namely to ensure so far as possible that housing authorities do not simply decant homeless persons into areas for which other authorities are responsible. There are significant consequences on a host authority, for example, by way of social service provision, which are obviously detrimental to the host authority, and as to which Parliament could properly consider that they require protection.”

That also reflects the fact that section 208 (2) does not require the placing authority to notify the applicant. The only person entitled to be notified under that section is the host authority. As Mr Vanhegan submitted, the duty under section 208 (2) is not a duty owed to the applicant, who is not entitled to be told whether or not the notification has been given, still less the date on which it was given. Moreover, the duty to notify does not arise until after the placing authority has made the accommodation available to the applicant. The duty to notify must be performed within 14 days after the accommodation is made available. Like most statutory time limits, there is no power to extend it. If, therefore, failure to comply with that duty invalidates a previous offer of accommodation, it does not matter whether the placing authority was one day late or one year late in notifying the host authority. A failure to notify under section 208 (2) is not a decision which, in itself, gives rise to the right on the part of an applicant to a review. Its only significance, if any, is to the question of suitability of the offered accommodation: Waltham Forest LBC v Saleh [2019] EWCA Civ 1944, [2020] PTSR 621 at [30]. But since the duty to notify is not a duty owed to the applicant; the applicant is not even entitled to be informed whether or not the notification has been given, and the duty only arises after accommodation has been made available to the applicant, how can the mere fact that notification has been given late affect the suitability of the offered accommodation?

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

The second question is what, if any, prejudice has the person directly affected by the procedural omission suffered? That person is Haringey. Although we have seen the belated notification to Haringey of Ms A’s placement, we have seen no reply from Haringey. If Haringey have no objection to the placement, and they now have the required information, it is difficult to see what prejudice they have suffered from the failure to notify in time.

But even looked at from the perspective of Ms A (who is not directly affected and to whom no duty to notify was owed), what prejudice or injustice has she suffered? She was not entitled to be notified under section 208 (2) and (4). She was entitled to be offered suitable accommodation; and that is precisely what she obtained: compare Norton at [49].

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

I do not consider that the judge was justified in quashing Enfield’s decision on this ground. This ground of appeal is also a good one.

In my judgment, therefore, Enfield succeeds on both its substantive grounds of appeal, and the third issue relating to the nature of the relief that the county court can grant does not arise. I would allow the appeal.

I agree.

I also agree.