Abdelrahim Alibkhiet v London Borough of Brent; Amounah Adam v City of Westminster
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Henderson,Lady Justice Asplin |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2742 |
| Docket Number | Case No: B5/2017/3090 and B5/2018/1286 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2018 |
[2018] EWCA Civ 2742
Lord Justice Lewison
Lord Justice Henderson
and
Lady Justice Asplin
Case No: B5/2017/3090 and B5/2018/1286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Saggerson
Royal Courts of Justice Strand, London, WC2A 2LL
Nicholas Grundy QC and Millie Polimac (instructed by Brent Council) for the Appellant in B5/2017/3090
Martin Westgate QC and Dominic Preston (instructed by Hodge Jones & Allen Solicitors Ltd) for the Respondent in B5/2017/3090
Jonathan Manning and Richard Granby (instructed by Oliver Fisher Solicitors) for the Appellant in B5/2018/1286
Andrew Lane and Riccardo Calzavara (instructed by City of Westminster Council) for the Respondent in B5/2018/1286
Hearing dates: 27 th November 2018
You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London; and that local government finance is severely stretched. Under the homelessness legislation housing authorities in London have duties to procure housing for the homeless; and must, so far as it is reasonably practicable to do so, accommodate such persons within their own district. These joined appeals concern the lawfulness of the decisions and process by which two London boroughs, in purported exercise of their statutory duty, made offers to accommodate homeless persons outside their respective districts. Both appeals are appeals from HHJ Saggerson, who in one case upheld the decision of the local authority, and in the other quashed it.
The statutory framework
It is not in dispute that the housing authority in each of these appeals owed the relevant applicant the full housing duty imposed by section 193 of the Housing Act 1996. That duty is a duty to “secure that accommodation is available for occupation by the applicant”. The duty may be discharged if the housing authority makes an offer of accommodation which an applicant refuses. The housing authority may discharge their duty only in certain specified ways, one of which is by securing that an applicant obtains suitable accommodation from a third party: section 206 (1). In addition, an authority must not make a final offer unless they are satisfied that “the accommodation is suitable for the applicant”: section 193 (7F).
Since changes brought about by the Localism Act 2011 a housing authority may discharge its duty by making a private rented sector offer. The criteria applicable to such an offer are set out in section 193 (7AC). The relevant criterion for present purposes is:
“(c) the tenancy being offered is a fixed term tenancy … for a period of at least 12 months.”
Section 195A (1) provides:
“If within two years beginning with the date on which an applicant accepts an offer under section 193(7AA) (private rented sector offer), the applicant re-applies for accommodation, or for assistance in obtaining accommodation, and the local housing authority—
(a) is satisfied that the applicant is homeless and eligible for assistance, and
(b) is not satisfied that the applicant became homeless intentionally, the duty under section 193(2) applies regardless of whether the applicant has a priority need.”
Section 195A (3) makes similar provision for persons threatened with homelessness.
Section 208 (1) provides that:
“So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.”
The Secretary of State has power to make regulations specifying circumstances in which accommodation is or is not to be regarded as suitable; and matters to be taken into account or disregarded in determining that question: section 210 (2). The Regulations in force at the date of the impugned decisions were the Homelessness (Suitability of Accommodation) (England) Order 2012.
Article 2 of the Order provides:
“In determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including—
(a) where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority;
(b) the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person's household;
(c) the proximity and accessibility of the accommodation to medical facilities and other support which—
(i) are currently used by or provided to the person or members of the person's household; and
(ii) are essential to the well-being of the person or members of the person's household; and
(d) the proximity and accessibility of the accommodation to local services, amenities and transport.”
In addition to complying with the Order, a housing authority is also required to “have regard to such guidance as may from time to time be given by the Secretary of State”: section 182. That guidance states:
“48. Where accommodation which is otherwise suitable and affordable is available nearer to the authority's district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.
49. Generally where possible authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.”
An applicant is entitled to request a review of any decision of a housing authority as to the suitability of accommodation offered to him: section 202 (1). If the result of the review is to confirm the original decision, the reviewing officer must give reasons for the decision: section 203 (4).
An applicant dissatisfied with a review decision may appeal to the county court on a point of law; and in determining the appeal the county court must apply the principles applicable to judicial review. On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit: section 204 (3). (I note in parentheses that it was not suggested that section 31 (2A) of the Senior Courts Act 1981 applied ether by analogy, or by informing the exercise of the court's discretion under section 204 (3) of the 1996 Act).
It is also necessary to refer to section 11 of the Children Act 2004, which requires a local authority to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children.
Adam v Westminster City Council
Ms Adam is a divorced woman with three children who, at the relevant time, were aged 11, 9 and 6 respectively. She applied to Westminster City Council as a homeless person; and on 9 March 2015 Westminster accepted that it owed her the full duty under section 193 (2) of the Housing Act 1996. In compliance with that duty Westminster housed her and her children temporarily in Flat 72, Lapworth Court, Delamere Terrace, London W2. The children attended a local school: King Solomon Academy, Penfold Street, London NW1.
Westminster has an accommodation placement policy for homeless households, which is Appendix 9 to its Housing Allocation Scheme. The policy is reviewed annually. The version with which we are concerned is the January 2017 version. It begins by setting out some key principles:
“2.1 In accordance with legislation and statutory guidance, the council seeks to accommodate homeless households in Westminster as far as reasonably practicable. However, as there is a serious shortfall of accommodation in-borough to meet housing need, it will not be reasonably practicable to provide accommodation within Westminster to every household and there will be an increasing need to use accommodation that may be at some distance from the borough.
2.2 Because of the limited supply of accommodation in Band 1 and Band 2 (defined below), accommodation within these bands will be allocated to homeless households with a compelling need for it.”
The policy groups households into three bands. Those in Band 1 are given priority for offers of accommodation within Westminster and adjacent boroughs. Those in Band 2 are prioritised for offers of accommodation within Greater London; and those in Band 3 will normally be offered accommodation outside London. The policy states that individual decisions about placements in Bands 1 and 2 will take account of the availability of suitable property in the bands; and that any special circumstances demonstrating a compelling need for accommodation within either Band 1 or Band 2 will also be considered. The policy also states that priority banding is not a guarantee of placement within the relevant area; and is subject to suitable accommodation being available. It is common ground that Ms Adam is not among those prioritised for accommodation within Band 1. On my reading of the policy she is not among those automatically prioritised for accommodation within Band 2 (because her children were not at the required stage of their education).
In addition to its accommodation placement policy...
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