Lisa Paley v The London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lady Justice King,Mr Justice Francis |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] EWCA Civ 112 |
| Docket Number | Case No: B5/2021/0571 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 112
Lady Justice King
Lady Justice Asplin
and
Mr Justice Francis
Case No: B5/2021/0571
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT STOKE ON TRENT
His Honor Judge Rawlings
G00SQ548
Royal Courts of Justice
Strand, London, WC2A 2LL
Jocelyn Hughes (instructed by Dicksons Solicitors) for the Appellant
Nicholas Grundy QC and Michael Mullin (instructed by Waltham Forest Council) for the Respondent
Hearing date: 30 November 2021
Approved Judgment
Introduction
This is a second appeal from an order made by HHJ Rawlings on 7 September 2020 whereby he dismissed the appeal of the appellant Lisa Paley (“Ms Paley”) against the decision of Waltham Forest Borough Council (“the local authority”) to offer Ms Paley accommodation in Stoke-on-Trent in order to bring to an end their main housing duty under s 193(2) of the Housing Act 1996 (HA 1996).
The issue before the court is whether, upon a correct application of judicial review principles, the local authority made proper inquiries and conducted an appropriate objective assessment of the affordability of a private rental property offered to Ms Paley sufficient to discharge their duty to rehouse her pursuant to s 193(2) HA 1996.
Permission to bring this second appeal was granted by Arnold LJ on 5 July 2021 on the basis that not only does the appeal have a real prospect of success, but it raises important points of principle of practice concerning the inquiries which local authorities must make when determining whether or not a person is intentionally homeless.
For the reasons set out in more detail later in this judgment, the appeal will be allowed, this court having concluded that the local authority failed to make a proper assessment of the affordability of the out of borough property they offered to Ms Paley in the purported discharge of their duty to provide her and her children with suitable accommodation.
Background
The background can be set out shortly. Ms Paley is a single parent with four children now aged 21, 15, 14 and 5 years. The father of the three younger children is a man who has played no part in these proceedings.
Ms Paley lived in Waltham Forest for 35 years until 31 August 2016, when she was evicted following the service upon her of a section 21 Housing Act 1996 (“HA 1988”) notice in circumstances when her landlord wished to sell the privately rented property in which she and the children had lived for 8 years.
Ms Paley subsequently presented to the Local Authority as homeless and in November 2016, the family was placed in temporary accommodation in Bexley. On 3 June 2017, the local authority accepted that it owed Ms Paley a full housing duty under s 193(2) HA 1996, a duty commonly known as the ‘main homelessness duty’.
On 4 November 2019, the discretionary housing payments which were being made to Ms Paley came to an end leaving a shortfall in her weekly budget. As a consequence, she accrued significant rent arrears in relation to the temporary accommodation in Bexley.
As the accommodation in Bexley was temporary, in order for the local authority to discharge its duty to bring to an end its main homelessness duty under s 193(2) HA 1996, they had to provide adequate accommodation for Ms Paley, suitable for her long term housing needs.
The s193(2) HA 1996 duty
Before considering whether, contrary to the submissions made on her behalf, the property offered to Ms Paley discharged the main housing duty of the local authority, it is useful to identify the nature of the duty and the obligations which underpin it.
Part VII of the HA 1996 is entitled ‘Homelessness’. Under section 193, if the local authority is satisfied that the applicant is homeless, eligible for assistance, has a priority need and it is not satisfied that the applicant is intentionally homeless, then the local authority will ordinarily owe him or her under s 193(2) HA 1996, the main housing duty to secure accommodation for his or her occupation. That duty continues until one of the events at s 193(5) – (7AA) occurs.
In Ms Paley's case, the local authority offered her accommodation in the private rental sector so the relevant provision bringing the local authority's duty to an end is s 193(7AA) HA 1996:
“The authority shall also cease to be subject to the duty under this section if the applicant, having been informed in writing of the matters mentioned in subsection (7AB)—
(a) accepts a private rented sector offer, or
(b) refuses such an offer.
(7A) 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 and
(c) in a case which is not a restricted case, the effect under section 195A of a further application to a local housing authority within two years of acceptance of the offer.
(7AC)………
(7F) The local housing authority shall not—
Make a final offer of accommodation under Part 6 for the purposes of subsection (7); or
(ab) approve a private rented sector offer
Unless they are satisfied that the accommodation is suitable for the applicant and that subsection (8) does not apply.”
It follows therefore that the local authority must not approve a privately rented property unless it is suitable for the applicant. Suitability includes both the location of the property and its affordability. If the property is not suitable, then by virtue of s 206 (1)(b), the main housing duty will not be discharged. By s 208(1) HA 1996 the local authority shall, so far as is reasonably practicable, secure accommodation in the district of the applicant.
In discharging its duties the under the HA 1996, the local authority functions are also covered by section 11(2) Children Act 2004 (‘CA 2004’) which requires inter alia, a housing authority to ensure that they discharge their functions ‘having regard to the need to safeguard and promote the welfare of children’ and that any services provided by another person pursuant to arrangements made in the discharge of their functions are ‘provided having regard to that need’.
By section 182(1) the local authority is obliged to have regard to such guidance as may from time to time be given by the Secretary of State.
In the present appeal the focus is on two matters each of which relate to the suitability of the property offered to Ms Paley; namely its location and its affordability.
Location
It goes without saying that Ms Paley, as a single mother with four children who had lived all her life in a particular area of London, wished to remain in that locality. The importance of people remaining in their area is recognised in s 208(1) HA1996, which imposes a statutory duty on local authorities to provide accommodation for a homeless person in their own area “so far as [is] reasonably practicable”.
Due to the serious housing shortage in London, out of borough placements have become increasingly common. During the passage of what subsequently became the Localism Act 2011, it became apparent that some local authorities were placing families a considerable distance from their home area. In recognition of this problem, the Secretary of State made it a statutory obligation to take into account the location of accommodation when determining suitability. This was incorporated into the Homelessness (Suitability of Accommodation) (England) Order 2012 (“the 2012 Order”) which provides as follows:
“Matters to be taken into account in determining whether accommodation is suitable for a person
2. 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.”
The obligation to secure housing as close as possible to where the family had been previously living was further strengthened in the “Supplementary Guidance on the homeless changes in the Localism Act 2011”. This not only required, at para 49, the local authorities to try to secure accommodation ‘as close as possible to where an applicant was previously living’ but also to seek ‘where possible’ to retain established links including ‘support’.
The Supreme Court considered the duties placed upon local authorities in out of borough placements in Nzolameso v Westminster [2015] UKSC 22; [2015] 2 All ER 942. Baroness Hale, having traced through the development of the duties of local authorities in relation to out of borough placements, said:
“[19] The effect, therefore, is that local authorities have a statutory duty to accommodate within their area so far as this is reasonably practicable. “Reasonable practicability” imports a stronger duty than simply being...
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