Calgin, R (on the application of) v London Borough of Enfield

This is an application for judicial review in which the claimant challenges the legality of the Council’s out of area policy for housing the homeless, and also the particular decision to offer accommodation in Birmingham for the claimant and his family who were found to be homeless and in priority need.

The factual background

The Claimant entered the UK from Turkey on 12^th September 2003 and applied for asylum on the 17^th September 2003. The Claimant had fled from Turkey as a result of detention and torture by Turkish authorities. The Claimant was granted asylum and indefinite leave to remain on the 29^th April 2004.

The Claimant lived with his wife, Sibel Calgin, and their 11 month old baby, together with his two brothers and their respective families in a 3-bedroom house in Edmonton, Middlesex.

On the 13^th July 2004, the Claimant applied to the Defendants’ Homeless Persons Unit for housing assistance on the basis that he and his family were statutorily homeless due to overcrowding. The Defendants failed to process that application and he asked for assistance again on the 11^th August 2004.

On the 12^th August 2004 the Defendants offered the Claimant temporary accommodation in Birmingham, pending inquiries. This offer was made pursuant to section 188 of the Housing Act 1996. The claimant says that he was told that he had to go there or not be accommodated at all. In the event he declined this accommodation.

On the 16^th September 2004 the Council accepted that a duty was owed to the Claimant and his family under the Housing Act 1996, s 184. An offer of accommodation was made pursuant to s 193 of the Act in Smethwick, Birmingham. The Claimant visited the Defendants’ Homeless Persons Unit on the 23^rd September 2004 with his sister-in-law who acted as an interpreter. The Claimant says that he was not asked any questions regarding the suitability or location of the accommodation offered. The Claimant was told that he would be taken on the following day, the 24^th September, to Birmingham.

The Claimant was taken to the property in Smethwick which is a 2 bedroom house. He claimed that it appeared to be in poor condition, dirty and in disrepair and was unsuitable for him and his family. However, notwithstanding these objections, the Claimant no doubt prudently accepted this offer of accommodation in order to protect his position.

On the 11^th October 2004 the Claimant requested that the Defendants carry out a review of the suitability of this accommodation pursuant to s 202 of the 1996 Act. He claimed to have a strong local connection with the Respondent’s area on account of both of his residence there and the family and community connections. He contended that he and his wife were vulnerable, spoke no English, had no relatives in Birmingham and would be isolated there. It was further alleged that the Defendants’ policy or practice of accommodating families outside London was incompatible with Housing Act 1996, s 208.

The Defendants completed their statutory review decision on the 22^nd December 2004. (This was in fact outside of the time limit specified in the legislation. Originally the claimant contended that as a consequence the re-determination was a nullity, but in the event that argument was not pursued.) Essentially, the review Panel upheld the original decision; it held that the property was suitable and moreover was consistent with the Defendants’ Out of Area Placements policy which I summarise below. I set out the Panel’s reasoning in more detail at para 54 below

On the 12^th January 2005 the Claimant issued an appeal under s 204 of the 1996 Act in Edmonton County Court. By Order dated the 28^th January 2005, after an oral hearing, and with the consent of both parties, the HHJ Riddell QC ordered that the appeal be stayed to permit the Claimant to issue an application for permission to apply for judicial review of the Defendants’ decisions and policy. The judge and both parties took the view that the Administrative Court was the appropriate forum because of the contention that the Defendants’ policy on out of area placements was unlawful. It is common ground that the effect of the order is that all issues before the judge now have to be decided by me.

The relevant legislation.

The manner in which this duty is implemented is regulated by sections 206(1) and 208(1) which concern the suitability of accommodation and out of area placements respectively. Section 206(1) is as follows:

“(1)

A local housing authority may discharge their housing functions under this Part only in the following ways— (a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”

Section 208 provides:

“ (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.”

Section 202 provides for the right to request a review of various decisions of the local housing authority in relation to a wide variety of issues, including the suitability of accommodation. Under section 204 a party who is dissatisfied with the decision on review can appeal to the county court on a point of law. The statutory review does not, however, extend to complaints that the authority has offered accommodation outside the borough in breach of section 208.

These provisions are interrelated. It is settled law that the location of accommodation is relevant to its suitability, for the purposes of section 206: see R v Newham LBC ex parte Sacupima (2001) 33 HLR 18 (C.A.). The duty to secure accommodation in the housing authority’s district, so far as reasonably practicable, is a free-standing duty. As Latham L.J. observed in giving the judgment of the Court in the Sacupima case, the provision is for the protection of other housing authorities as much as applicants (para 31):

“there is a clear and sensible purpose to be served by the section, namely to ensure so far as possible that authorities do not simply decant homeless persons into other 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.”

The grounds of appeal

I will deal with these issues in turn. Some of them raise certain subsidiary questions. In resolving the issues before me I bear firmly in mind the observations of Lord Brightman in R v Hillingdon London Borough Council ex parte Pulhofer [1886] AC 484, 518 (with whose judgment Lords Keith, Roskill, Brandon and Mackay concurred):

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

The legality of the out of area policy.

There are two related issues. First, it is said that even if the out of area policy is itself lawful, nevertheless the criteria selected to apply that policy are unlawful and fail to give sufficient emphasis to the duty under section 208. Second, it is contended that even if the decision to house out of the district was initially lawful, the duty under section 208 is a continuing one and the authority should periodically have reviewed whether it was possible to move the claimant and his family back from Birmingham to Enfield.

The out of area policy.

The current policy was adopted by the Council on the 31 March 2004. It is an extension of an earlier out of borough policy. It begins by recognising and indeed setting out in terms the duty imposed by section 208 but states that:

“the demand for homeless households is such that coupled with the acute shortage of affordable housing in Enfield, it is not reasonably practicable in many instances to provide accommodation locally.”

It points out that the there is an imbalance between the supply of affordable housing and the demand from homeless families such that the number of temporary accommodation had risen to over 2900. It was also anticipated that a government amnesty to 15,000 asylum seekers, and new rules limiting the type of accommodation which could be used to house households with children or pregnant women could exacerbate the problem. The policy sets out the cost comparison of various types of accommodation which show that the savings resulting from placing families in Luton or Birmingham could be significant.

Finally the policy sets out the criteria which are adopted for out of area placements. They are as follows:

“Availability of suitable accommodation in the Enfield area.

Size and location of accommodation available outside London and the availability of support networks in the area.

Comparative cost of a unit in Enfield to that available outside London.

Medical needs of the household. Is any member of the household receiving specialist treatment in London that would be difficult to access outside London?

Schools/colleges – Are any of the children of the household at key stages, in terms of examinations, or are they receiving special needs teaching?

Social needs – Is there any exceptional reason why the household has to remain in the area to enable family/friends to provide support?

Employment – are there any particular issues?

Proximity to schools, public transport, primary care services, local services in the area in which the accommodation is located.

Any special circumstances which might exclude them from this policy.”

Mr Knafler has submitted that there is insufficient evidence to justify the claim that there is a shortage of relevant accommodation. This argument is closely related to a more fundamental contention that the defendant council has allowed cost to weigh too heavily in the adoption of the policy. Plainly the volume of available accommodation will be related to the price which the council is willing to pay for it. However, insofar as it is suggested that there is no evidence of shortage of accommodation at a cost which the council considers to be reasonable, I reject it. It is common knowledge that London borough councils are very hard pressed to meet the needs of their homeless. Moreover the defendant provided a witness statement from the Assistant Director of Housing Needs and Sheltered Housing, Sue Samek, who speaks from twenty years experience with housing the homeless. She describes the shortage of accommodation in Ealing as “chronic and severe”, and notes that the number of homeless applicants is increasing. The problem is particularly acute, in her experience, for two and three bedroom houses. She says that the purpose of providing such accommodation out of the borough is not merely to make cost savings but also to provide accommodation of a higher quality than could be obtained within Enfield. It is however, only one of a number of strategies designed to deal with the housing shortage.

She points out that, contrary to the initial understanding of the claimant, there are relatively few persons housed out of the borough. Currently it is just over 1% i.e. 35 out of 3000 households housed in Enfield. The saving resulting from placing persons out of the borough has been estimated to be a little in excess of £100, 000.

Furthermore, the defendant’s Homelessness Strategy (“the Strategy”) made by the Council in pursuance of an obligation imposed by the Homelessness Act 2002, is littered with references to the shortage of accommodation in the borough to meet the demand (see especially section 10).

Accordingly there is plenty of evidence to show that the authority genuinely faces considerable difficulties in finding appropriate accommodation to meet its needs within the borough, at least at what it perceives to be a reasonable cost.

The principal issue advanced by Mr Knafler with respect to this policy, however, was that in forming the view that there were insufficient properties in the borough, the Council had failed properly to give effect to the concept of reasonable practicability in section 208. His initial stance was that cost was wholly irrelevant to the concept, but this position was modified in the course of argument. He recognised that there could be situations where the need for the accommodation was unpredictable and the cost of obtaining suitable accommodation within the borough could be so disproportionate that it would be justifiable for the council to find accommodation elsewhere. But he contended that such a situation would be likely to arise only where the accommodation was required for a short period of time, the application was an emergency one and made during a period of unpredictably heavy demand, and the only alternative to accommodation outside the district would be disproportionately expensive. He submitted that these exceptional criteria were not met here, either so as to justify the adoption of the out of area policy, or to warrant sending the claimant to Smethwick.

Mr Beglan, counsel for the claimant, submitted that this was far too restrictive a concept of reasonable practicability. He says that cost can plainly be a proper and material factor for the council to take into account. He also stresses that this is not the only reason for the out of area policy; it also assists in ensuring a range of suitable accommodation of differing sizes.

I was referred to a number of authorities on the meaning of “reasonably practicable”. However, many of them were in the field of health and safety, and I do not find them relevant to the proper construction of section 208. The meaning of that concept must be determined in the light of the particular statutory context. But Mr Knafler is surely right to concede that cost cannot be an irrelevant or improper consideration. As Nicholls J, as he was, pointed out in an admittedly very different statutory context when considering the meaning of "reasonably practicable": in Jordan v Norfolk County Council [1994] 4 All E R 218, 221:

“…there is very little nowadays which is not physically feasible if enough money is spent. Hence in this context the phrase is apt to include financial considerations.”

Furthermore, it must surely be assumed that Parliament would have been well aware of the intensive pressures on housing stock and, whilst favouring in borough accommodation, would not have sought to impose undue or unnecessarily onerous financial burdens on local authorities who are taking a practical approach to the problem of matching the need for a range of suitable accommodation with a limited budget. As Ms Samek points out in her witness statement, it is not merely a matter of cost, although that is a highly material factor. The quality and the range of accommodation may be improved by going out of the borough

It is also well established that cost is a material matter when determining whether accommodation is suitable within the meaning of section 206: see the comments of Dyson J in the Sacupima case at paras. 20 to 24 and the cases cited therein. The judge referred in particular to some observations of Laws J, as he then was, in R v Lambeth LBC ex parte Eckpo-Wedderman [1998] 31 HLR 498, 514 when he said:

“I do not believe that a local housing authority, considering (as it is right that it should) whether to meet a particular and perhaps unusual need by acquiring property on the open market, is obliged to disregard the cost of doing so.”

In a practical world the question of available resources must be as relevant to the discharge of the duty under section 208 as it is to the duty under section 206.

Moreover, it seems to me relevant to note that the accommodation offered must be suitable, having regard to the interests of the applicants, otherwise it can be challenged on that basis alone. In practice that is going to limit severely the ability of the authority to offer appropriate housing out of the district. I recognise of course that the duty is still to find accommodation within the borough if reasonably practicable, even if there is suitable accommodation outside. But in my judgment it is legitimate to have some regard to the fact that the property must be suitable when determining how much scope can properly be given to the concept of reasonable practicability in this particular statutory context

As Pulhofer makes plain, it is for the Council at the first stage to determine whether it is reasonably practicable to obtain accommodation within its area. The court can interfere only if the decision is unlawful, on what would traditionally be called Wednesbury criteria. That is the position with regard to suitable accommodation and I see no reason to adopt a different approach here. There is a minimum standard below which the Council cannot fall, and lack of resources will not justify going below that standard, but "it is a matter of judgment for the local authority to decide what accommodation on the spectrum of suitable accommodation to select" per Dyson J in Sacupima. Similarly here; there will be a discretion given to the authority but there must be a proper evidential basis for determining that the provision of local accommodation is not reasonably practicable. And it is important that an authority bears in mind that the requirement is not simply what is reasonable but what is reasonably practicable, which is a higher test.

In my judgment it cannot be said that the decision to use this out of district accommodation for the relatively small proportion of those seeking accommodation, is Wednesbury unreasonable, even recognising that the test is one of reasonable practicability. The shortage of suitable accommodation in Enfield, coupled with the savings which it has been calculated can be secured for the budget overall –some of which at least may be used for other aspects of the budget- justify the adoption of this policy. Given the financial constraints on the Council, it was entitled to conclude that it would not be reasonably practicable to house these persons within the borough of Enfield.

I turn to consider the two related issues. Mr Knafler submitted that the criteria which are applied in giving effect to the policy are unlawful. He criticised the fact that the first factor merely makes the existence of appropriate accommodation in the borough one of a number of factors to consider whereas it ought to be a particularly important factor given the requirement under section 208. I think that there is some force in this submission. I recognise that the policy itself is made available to staff, and Ms Samek says that they will be well acquainted with it. The policy does identify the section 208 duty at the beginning and no doubt most officers are well acquainted with it. But I imagine that some officers at least simply focus on the criteria themselves. In my view it ought to be made plain in the section dealing with the criteria that one of the objectives is to ensure that so far as is reasonably practicable accommodation should be provided in the borough. Alternatively, the criteria could specify that normally suitable accommodation which is available in the area should be used, unless it is not reasonably practicable to do so. And in my opinion it may not be reasonably practicable even where cost effective accommodation is available. . It seems to me, for example, that an authority may be justified in withholding accommodation from someone with no or very limited links with the area in the confident expectation that someone with much closer links, and for whom out of borough accommodation would not be suitable, will within a very short time be seeking accommodation also. The housing authority must anticipate likely demand, and I did not understand Mr Knafler to dispute this.

Notwithstanding that I think that the criteria should be clarified in the way I have indicated, I do not think it appropriate to give relief specifically on this matter for a number of reasons. Relief on this narrow basis was not sought in the grounds; the amendment is one of clarification rather than to correct a manifest error, since the policy read as a whole does identify the significance of section 208; and in any event the crucial question for this claimant is whether the authority properly had regard to its section 208 duty when considering his application. For reasons I set out below, I consider that it did.

Mr Knafler has submitted that even if the decision was properly taken at the time, it is incumbent on the authority to review the situation periodically to see if circumstances have changed so that effect can be given to the statutory preference for accommodation within the borough. He combined this with a much wider argument that the Council should continually be seeking to “marry” accommodation to the needs of the applicants. He makes the point that short term accommodation, such as will typically be involved where someone is housed pursuant to section 188 pending a determination of their application for permanent housing, may justify an out of area placement in circumstances where a longer period, albeit still nominally "temporary", would not. In principle that is no doubt right. In determining the question of suitability a housing authority can properly have regard to the period of the anticipated stay: see the observations of Dyson J, as he was, at first instance in the Sacupima case: 920010 HLR 1 at para 25.

As Ms Samek points out, however, it would be wholly impractical for the council to have continually to re-assess whether the accommodation being provided was the best fit for the clients. I am satisfied that this is not what the statute requires and is inconsistent with the Sacupima decision. The obligation is to provide suitable accommodation; once that is done there cannot be regular reappraisal to find more suitable accommodation. However, given that the question of suitability may be related to the period during which accommodation is used, that must be subject to the point that sometimes property will become unsuitable if the actual period of occupation turns out to be longer than had been anticipated.

Similarly, the section 208 duty is to provide accommodation within the borough if that is reasonably practicable, and plainly over time the availability of property and the demand may vary. In my view the Council ought to be alive to the need to keep that category of household under review. However, Ms Samek contends in her witness statement that the Council does have regard to an applicant’s circumstances even after a placement has been made. She gave an example of a situation which had recently arisen where properties became free within the borough and a policy was drawn up to bring back into the borough those housed outside who were most in need of accommodation in Enfield. In the circumstances I am not prepared to conclude that the council has failed to take steps to keep the position under review. Nonetheless I think that the council would be wise to consider putting in place a more formal system for ensuring that those out of the borough, particularly if they are seeking to come back within it, do have their situation periodically reconsidered to see if it has become reasonably practicable to move them back into suitable accommodation in Enfield.

The legality of the policy under the Homelessness Act 2002.

Section 2 of the 2002 Act provides that in the course of their “homelessness review” a local housing authority is required to review (inter alia) levels and the likely future levels of homelessness in their district and the resources available to them for preventing homelessness, providing support for the homeless and the potentially homeless, and securing that accommodation is or will be available to homeless persons in the district.

Section 3 then sets out what the strategy document should include. Essentially it should identify a strategy for dealing with the problems highlighted in the review relating to prevention of homelessness, support for the homeless, and securing that sufficient accommodation is and will in the future be available for homeless people in their district. Subsection 2 is of some materiality in this case. It provides that:

“A homelessness strategy .may include specific objectives to be pursued and specific action planned to be taken in the course of the exercise of-

(a)

the functions of the authority as a local housing authority; or

(b)

the functions of the social services authority for the district.”.

Authorities must keep the strategy under review and modify it from time to time (at least at 5-yearly intervals). Authorities must publish and make available both their review and their strategy. Before adopting or modifying a strategy the authority must consult such public or local authorities, voluntary organisations or other persons as they consider appropriate: section 3(8).

It is accepted that the purpose of all this is to require housing authorities to adopt a strategic, multi-agency approach to tackling homelessness. The strategy should be formulated with the assistance of social services authorities and other bodies (including registered social landlords, voluntary organisations and so on) and which is published in one comprehensive document.

The argument, as I understand it, is that the strategy makes no reference to the out of area policy, that the out of area policy was not adopted following the consultation procedures required for modifying the strategy under the 2002 Act, and that as a consequence both the strategy and the policy are defective. (Indeed, it is said that they are ultra vires the 2002 Act, but I do not think that the language of ultra vires is appropriate in a case where it is said that a document has been prepared without compliance with the procedure specified in the Act.)

The policy in its current form was adopted in the Spring of 2004 some months after the current strategy had been adopted by the full Council on the 23 October 2003. There is, however, the opportunity to amend the strategy to take account of the policy and Mr Knafler submits that it should have been amended to give effect to the 2002 Act.

I do not think that is right, for a number of reasons. First, section 3(2), which I have set out above, does not require that specific objectives or plans should be included within the strategy. It is a matter of discretion whether they are included or not. In any event, the out of area policy did not introduce the notion of placements out of the borough for the first time. Such placements were already being made when the strategy was adopted. There is some, albeit limited, reference to that fact, as well as to the need further to promote out of borough placements, both in the review and in the strategy document. In the review it is expressly stated (at p 85) under a heading “Use of temporary accommodation outside of Enfield” that some 27 households were then being housed in Birmingham and Luton. It is stated that they are for persons who have no local connection with the borough. Recommendation 22 of a service improvement plan adopted as part of the review in terms states that one of the aims should be to “pursue the identification of cheaper temporary accommodation outside of London.”

Similarly, in the strategy, there is a reference to the London Housing Statement of 2002 which identified as one of its proposals for action that approaches should be made by certain local government organisations in London to seek to procure temporary accommodation in areas bordering the Greater London boundary. Moreover one of the specific “action plans” designed to increase the pool of permanent accommodation is “to increase the take up of Out of London housing options by homeless households.” (p. 69).

In my judgment there can be no doubt that the out of area policy adopted by the Council is entirely consistent with the strategy document. It does not amount to a modification of the strategy at all. Furthermore, it cannot be the case that every variation of each specific policy relating to the homeless and directed to implementing the strategy has to be made the subject of a formal amendment to the strategy document. The time and cost would take valuable resources away from front line services. I accept that in theory the adoption of a major new homelessness policy could involve such a shift from the strategy that a reasonable authority would need to reflect it in a modified strategy and go through the consultation mechanism laid down in the Act. It may be that when this judicial review was first initiated the claimant thought that there was indeed such a fundamental change. As I have said, it appears that they were under the impression that the authority were placing very many more families outside the borough than is the case. In fact only a small number are being housed in that way, and indeed the number has not significantly risen since the strategy document was formulated. I recognise that the criteria have altered since the review document in that persons may be housed out of the borough even if they do have some local connection with the borough. In my judgment that is nowhere near the kind of change in approach which would require a formal amendment to the strategy document. This is detail, not strategy.

Accordingly in my view it was not necessary to modify the homelessness strategy so as to make specific reference to the out of area policy, and likewise that policy could properly be adopted without the need for the housing authority to go through the consultation exercise applicable to the modification of the strategy. It is not unlawful as a consequence of the impact of the 2002 Act.

The particular application: the suitability of the accommodation offered.

I can consider the procedural aspect briefly. In my judgment there is nothing in this challenge. It seems to me, looking at the application form and the notes in the file relating in particular to the period in August and September last year, that all the relevant information was considered. In addition, the notes suggest that the claimant did make some points about his being involved in a training course and being in debt. In any event, whether there were procedural defects then or not, there was the statutory review on the 22 December. It is plain that any defect in the procedure which might have occurred at the first stage was put right by the opportunity given to the claimant, through his solicitor, to put any points he wished about the suitability of the property, including why he was unwilling to live outside Enfield.

Was the decision on suitability a lawful one? It is necessary to set out the key paragraphs of the review Panel’s decision in which the Panel gives its reasons:

“The Panel noted that when you applied to this Authority as homeless your household met the criteria for an out of area placement. The Panel reached this conclusion having considered, amongst other factors, your employment status and the educational, medical, and social needs of you household, as well as the availability of suitable accommodation in the Enfield area and the comparative cost of accommodation outside London.

Under current Council policy, which was agreed by Members at a full Council meeting, exemptions to the out of borough placement policy will only normally be made on educational grounds when a child is at a key stage of his education, in terms of examinations, or is receiving special n needs teaching. The Panel concluded that the criteria did not apply to your son, who is not of school age.

The Panel noted no one n your household suffers from a significant health problem, that requires treatment that is only available from a specialist in the London area.

The Panel also noted that you have been in continuous receipt of welfare benefits since being granted indefinite leave to remain in the UK by the Immigration and Nationality Department on 29 April 2004 and as such concluded that there is no reason for you to be accommodated in Enfield on the basis of having employment in the London area.

Whilst acknowledging that you wish to remain in this area because of the existence of a substantial Turkish community and the fact that members of your family reside here, the Panel concluded that there is no exceptional reason why you needed to remain in the Enfield area. The Panel also observed that Birmingham contains a diverse mix of ethnic communities, including an established Turkish community.

In addition, the Panel also considered that the property is located in an inner-city district of Birmingham and is well served by public transport, shops and other facilities

The Panel had regard to section 208 (1) of the Housing Act 1996 which states 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”. However, the Panel noted that on the date that you approached this Authority there was no cost-effective alternative temporary accommodation in, or close to the borough, and that there was no special reason why you should have been placed in the Birmingham area.

The Panel noted that the policy of this Council to acquire accommodation outside the borough has led to a saving on the homelessness budget. The accommodation in Birmingham is cheaper than the equivalent accommodation within Enfield. By placing you in a 2-bedroom house in Birmingham this Authority will make an approximate saving of £2920.00 per annum on the cost of your temporary accommodation.”

Strictly the Panel undertaking the statutory review had to look only at the issue of suitability. That was specifically what they were requested to do. In fact, however, submissions were also made about the legality of the out of area policy and the alleged lack of concrete evidence demonstrating that there was insufficient accommodation in Enfield. Although these matters went beyond the statutory remit of the Panel, the Panel did also deal with them in its reasons, as is clear from the extract set out above.

Mr Knafler submits that this was not a legitimate exercise of discretion and that the housing authority failed to balance the factors fairly. I reject that. The review Panel in the passage set out above have in some detail identified the factors in the claimant’s favour and those against, and concluded that the property was suitable. As I have said, the court will not readily interfere with the approach of a housing authority to the question of suitability, although in an appropriate case it plainly will: see e.g. Yumsak v London Borough of Enfield [2002] EWHC 280 Admin. But the facts of that case were far removed from this. Here in my view the authority took into account relevant matters, they had regard not only to the physical features of the property (which it is not disputed is of the appropriate size) but also the needs of the family. They recognised that there were certain adverse consequences for the family having to move to Smethwick, but decided that it was appropriate for them to be placed outside the borough. I can understand the disappointment of the family but I see no basis for saying that this conclusion was unreasonable in a Wednesbury sense.

There was one final point raised by the claimant with regard to this decision. . It was established by the House of Lords in Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002] 1 AC 547 that in exercising its statutory reviewing function the review body must have regard to information available to it at the date of the review. It should not simply test the decision of the officer in the light of the information he or she had available when the original decision was made. Lord Slynn, with whose speech Lords Steyn, Hoffmann, Hutton and Hobhouse agreed, observed (para 25):

“I find nothing in the statutory language which requires the review to be confined to the date of the initial application or determination. The natural meaning of the language in section 184 (2) in requiring the local housing authority to inquire whether the applicant “has” a local connection is that they should consider that at the date of the review decision. It is to be remembered that the process is an administrative one at this stage and there can be no justification for the final administrative decision of the reviewing officer to be limited to the circumstances existing at the date of the initial decision.”

That case concerned the question whether or not there was a local connection, but the same approach must be adopted to the issue of suitability.

The claimant submits that the Panel infringed this principle. He says that it is plain that when reaching its decision the Panel merely focused on the question whether the property was suitable at the date of the original application for housing.

There is no doubt that insofar as the placement out of the borough is concerned, the Review Panel did focus on the justification for placing the claimant in Smethwick as at the date of the original decision.. They do not appear to have considered the state of the housing market in Enfield or the housing demand as at the date they were making their decision. Mr Beglan submits that there was no material change in the interim. That may well be so, given the relatively short period between the two dates although there was no specific evidence about that.

As to the other factors, however, it seems to me that the Panel did look at the needs of the family with respect to such matters as education, health and employment at the date they reached their decision.. At any rate, nothing had changed in relation to these matters since the original decision and the claimant was not contending that they had.

It seems to me, therefore, that on the issue of suitability the Panel did have regard to the up to date position. The conclusion was that the accommodation in Birmingham was suitable both in physical layout and having regard to the particular needs of the family. To the extent that the locality was relevant to the issue of suitability, because of the effect on the family of living in Birmingham, it was taken into consideration. A property in Enfield may have been more suitable but that it not the issue. The question was whether the property offered in Birmingham was suitable: the Panel concluded that it was, and in my judgment, as I have indicated, they were entitled to reach that decision.

The failure to look again as of the date of the Panel’s decision at the section 208 question, namely whether out of borough property was justified because it was not reasonably practicable to provide accommodation within the borough, did not invalidate the decision on suitability. They are distinct, albeit related, obligations. As I have said, it is not, in any event, something, which the Panel was statutorily required to consider. For reasons I have already given, I consider that the council does have to keep under general review the question of reasonable practicability so that if and when the situation changes sufficiently, a household may be brought back into the borough. It may have been desirable for the Panel to have received up to date information about the availability of properties in the borough. But this was relatively soon after the original decision – some two months or so – and the Panel may well have made a reasonable assumption that the position would not have changed in any material respect in the mean time. But whether they took that view or not, in my judgment the failure to look afresh at the section 208 question in the review hearing was not an error of law since the Panel were not obliged to do so.

Conclusions.