Katie-Leigh Webb-Harnden v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Arnold,Lady Justice Asplin |
| Judgment Date | 22 August 2023 |
| Neutral Citation | [2023] EWCA Civ 992 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001935 |
[2023] EWCA Civ 992
Lady Justice Asplin
Lord Justice Arnold
and
Lord Justice Lewis
Case No: CA-2022-001935
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
MR RECORDER MIDWINTER KC
J40CL109
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan KC and Amritpal Bachu (instructed by Hackney Community Law Centre) for the Appellant
Michael Mullin and Scarlet Taylor-Waller (instructed by London Borough of Waltham Forest) for the Respondent
Hearing date: 13 th July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 22 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is an appeal against a decision of the county court dismissing an appeal against a decision of a reviewing officer of the respondent, the London Borough of Waltham Forest, dated 29 April 2022, finding that accommodation offered to the appellant, Ms Webb-Harnden, in the discharge of the respondent's duty under section 193(2) of the Housing Act 1996 (“the 1996 Act”) was reasonable and suitable.
In brief, the appellant is a single mother with three children who had lived in London all her life. She became unintentionally homeless and was in priority need. The respondent arranged for an offer of an assured shorthold tenancy in the private sector with a fixed term of 24 months at a rent of £149.59 per week. The accommodation was in Walsall. The appellant requested a review of the suitability of the accommodation. The reviewing officer upheld the decision to offer the appellant the accommodation in Walsall. The reviewing officer considered that the respondent did not have a suitable three-bedroomed property available for the appellant and her family in or near London and, in any event, the appellant would have been unlikely to be able to afford a suitable property in or near London as she was subject to a cap, or limit, on the amount of welfare benefits she was able to receive.
The appellant contends that the reviewing officer failed to have due regard to certain of the matters identified in section 149 of the Equality Act 2010 (“the 2010 Act”), namely the need to eliminate discrimination and advance equality, when reviewing the offer of accommodation.
THE LEGAL FRAMEWORK
Part VII of the 1996 Act provides that various duties are owed to persons who are homeless or threatened with homelessness. A person is homeless if he has no accommodation available for occupation by him and any person who resides with him as a member of his family or who might reasonably be expected to reside with him (see sections 175 and 176 of the 1996 Act).
For present purposes, the material duty is that imposed by section 193(2). That duty applies when a person is homeless, eligible for assistance, the authority is satisfied that the person did not become homeless intentionally and has a priority need, and that any interim duty to provide relief has ended (see section 193(1)). Section 193(2) provides that:
“(2) Unless the authority refer the application to another local housing authority (see section 194), they shall secure that accommodation is available for occupation by that person”.
The authority may only discharge their duty in certain specified ways, one of which is by securing that the person obtains suitable accommodation from a third party: see section 206(1) of the 1996 Act. One of the ways in which the authority can do that is by securing the offer of a fixed term tenancy for a period of at least 12 months' duration in the private rented sector. The duty under section 193(2) is brought to an end by the acceptance or refusal of such an offer. The material provisions of section 193 provide as follows:
“(7AA) The authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the matters mentioned in subsection (7AB)–
(a) accepts a private rented sector offer, or
(b) refuses such an offer.
(7AB) The matters are–
(a) the possible consequence of refusal or acceptance of the offer, and
(b) that the applicant has the right to request a review of the suitability of the accommodation
…
(7AC) For the purposes of this section an offer is a private rented sector offer if–
(a) it is an offer of an assured shorthold tenancy made by a private landlord to the applicant in relation to any accommodation which is, or may become, available for the applicant's occupation,
(b) it is made, with the approval of the authority, in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority's duty under this section to an end, and
(c) the tenancy being offered is a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988) for a period of at least 12 months.”
The accommodation provided for the person and his family must be suitable: see section 206(1) of the 1996 Act. Section 210(2) of the 1996 Act provides that the Secretary of State may, amongst other things, specify matters “to be taken into account or disregarded in determining whether accommodation is suitable for a person”. The Secretary of State has made the Homeless (Suitability of Accommodation) Order 1996 (“the Order”) Article 2 of which provides so far as material:
“2. Matters to be taken into account
In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation and in determining whether accommodation is suitable for a person there shall be taken into account whether or not the accommodation is affordable for that person and, in particular, the following matters-
(a) the financial resources available to that person, including, but not limited to,-
(i) salary, fees and other remuneration;
(ii) social security benefits;
…
(b) the costs in respect of the accommodation, including, but not limited to,-
(i) payments of, or by way of, rent;
…
(vii) the amount of council tax payable in respect of the accommodation;
…
(d) that person's other reasonable living expenses.”
Section 208 provides that, so far as reasonably practicable, a local housing authority shall secure that accommodation is available for the occupation of the applicant in their district.
An appellant may request a review of particular decisions of a local housing authority under section 202 of the 1996 Act including under section 202(1)(g):
“any decision of a local authority as to the suitability of accommodation offered to the applicant by way of a private rented sector offer (within the meaning of section 193).”
Section 204 provides a right of appeal to the county court on any point of law if the applicant is dissatisfied with the decision on the review.
Section 149 of the 2010 Act imposes an obligation on a public authority to have due regard in the exercise of its functions to certain specified matters. So far as material, section 149 provides:
“149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
…..
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
“Protected characteristics” are defined in section 149(7) and include sex and disability.
The general approach to whether the duty has been complied with is well established. The duty applies in the exercise of an authority's functions. In broad terms, the duty under section 149 is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had due regard to the relevant matters, taking into account the nature of the decision and the public authority's reasoning (see, e.g, Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2009] PTSR 809 at paragraphs 36–37, and Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60, at paragraph 26). As Lord Neuberger of Abbotsbury PSC observed at para 74 of his judgment in Hotak v Southwark London Borough Council (Equality and Human Rights Commission intervening) [2015] PTSR 1189 “the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment”. Relevant principles are set out at paragraph 26 of the judgment of McCombe LJ in Bracking. As the Court of Appeal has subsequently observed, that decision has to be read in context and the application of the duty will differ from case to case depending upon the function being exercised and the facts of the case. Furthermore, courts should be careful not to read the judgment in Bracking as though it were a statute: see Powell v Dacorum Borough Council [2019] EWCA Civ 23, [2019] HLR 21 at para 51 and...
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