Nadia Zaman v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lady Justice Asplin,Lady Justice Nicola Davies |
| Judgment Date | 24 March 2023 |
| Neutral Citation | [2023] EWCA Civ 322 |
| Docket Number | Case Nos: CA-2022-001589 and CA-2022-001429 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 322
Lord Justice Newey
Lady Justice Asplin
and
Lady Justice Nicola Davies
Case Nos: CA-2022-001589 and CA-2022-001429
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Gerald and His Honour Judge Saggerson
Case Nos J40CL014 and H40CL123
Royal Courts of Justice
Strand, London, WC2A 2LL
Jamie Burton KC and Siân McGibbon (instructed by Camden Community Law Centre) for Ms Zaman
Nicholas Grundy KC and Michael Mullin (instructed by London Borough of Waltham Forest) for the London Borough of Waltham Forest
Martin Hodgson and Daniel Grütters (instructed by Lawstop) for Ms Uduezue
Riccardo Calzavara (instructed by Bexley London Borough Council) for Bexley London Borough Council
Hearing dates: 7 & 8 February 2023
Further written submissions: 5 & 8 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
In Alibkhiet v Brent London Borough Council [2018] EWCA Civ 2742, [2019] HLR 15 (“ Alibkhiet”), Lewison LJ remarked in paragraph 1 that “[y]ou would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London”. It will doubtless be largely for that reason that it has become common for London councils to offer those to whom they owe the “main housing duty” under section 193(2) of the Housing Act 1996 (“the 1996 Act”) accommodation outside their boroughs and, sometimes, a long way from them.
Both of these appeals concern “out of borough” offers. One of the appellants, Ms Nadia Zaman, was offered accommodation in Stoke-on-Trent, more than 160 miles from where she was living. The accommodation offered to the other appellant, Ms Rita Uduezue, was much closer to London, but would still have involved a move of in excess of 20 miles. In each case, the relevant London borough made what was stated to be a “private rented sector offer” (or “PRSO”).
Basic facts: Ms Zaman
Ms Zaman used to live with her husband and three children, born respectively on 12 December 2012, 11 April 2013 and 17 October 2016, at 10 Lime Street, Walthamstow, London E17. In about July 2019, Ms Zaman and her husband separated and her husband left 10 Lime Street. Ms Zaman remained in occupation with the children, but she struggled to afford the rent. On 14 November 2019, after she had received a “no fault” eviction notice, Ms Zaman approached the London Borough of Waltham Forest (“Waltham Forest”) for assistance under Part VII of the 1996 Act. On 2 October 2020, Waltham Forest accepted that it owed Ms Zaman the “main housing duty” and, Ms Zaman having been given notice of eviction, Waltham Forest provided her and her children with temporary accommodation at 51 Abbots Park Road, Leyton, London E10 from about 12 July 2021.
In a letter dated 22 July 2021, Waltham Forest told Ms Zaman that it had “decided to bring the duty under s.193(2) to an end by arranging an offer of an assured shorthold tenancy in the private sector with a fixed term of 24 months”. The accommodation in question comprised a 3-bedroom maisonette at 65 Longshaw Street, Stoke-on-Trent. Waltham Forest warned that the offer would discharge its duty to Ms Zaman whether she accepted or refused the property.
That same morning, Ms Zaman telephoned Waltham Forest and, according to a note made by Waltham Forest, said that she was not going to accept the offer. On the following day, Mr Derek Bernardi of Camden Community Law Centre wrote to Waltham Forest on Ms Zaman's behalf asking that the offer be withdrawn and “an alternative offer in or as close as possible to Waltham Forest is made”. Mr Bernardi explained that Ms Zaman wished to have the offer withdrawn as she was “an informal carer for her mother who lives locally”, her children were settled at a local primary school, she required support from her sister and mother to help with childcare which “cannot be replaced in Stoke on Trent” and she was concerned that she might suffer racism or discrimination in Stoke-on-Trent. He further said that, if the offer were not withdrawn, “then whether or not Ms Zaman decides to accept it, she wishes to request a suitability review”.
Waltham Forest did not withdraw the offer but, in an email of 27 July 2021, confirmed that the PRSO in respect of 65 Longshaw Street was still available for Ms Zaman. On 1 August, Ms Zaman told Waltham Forest in an email that, although “[w]e are a 3 bedroom family”, “I am willing to take a two private rented place”.
On 15 September 2021, Mr Bernardi sent the reviewing officer, Ms Veena Bhatt, submissions in support of Ms Zaman's suitability review. He argued that 65 Longshaw Street “was not suitable, and/or … the Council was not justified in finding that it was suitable, and accordingly … [Ms Zaman] is still owed the main housing duty under s.193(2) Housing Act 1996”. Under the heading “Distance of property from local area”, Mr Bernardi said:
“The Council will be aware that, where it is considering making an offer of accommodation out of borough, it is under an obligation to seek to secure accommodation as close as possible to its local area – see s.208 Housing Act 1996 and the case of Nzolameso v Westminster City Council [2015] UKSC 22; [2015] HLR 22.
Our client's housing file tellingly contains no evidence that the Council sought accommodation any closer than Stoke on Trent. It is unclear whether efforts were made to secure accommodation in borough, or alternatively in a neighbouring borough or indeed in the whole of Greater London. It is difficult to imagine that, had such efforts been made, the Council would have been unable to find a suitable property in that entire area. Even if that were so, it simply defies logic that the Council could not secure accommodation closer than approximately three hours away in Stoke on Trent.”
On 29 September 2021, Ms Bhatt sent Ms Zaman (care of Mr Bernardi) a letter in which she explained that she was “minded to conclude that the property offered to you at 65 Longshaw Street … to end the authority's duty towards you under Section 193(2) of the Housing Act 1996 was a reasonable and suitable offer”. With regard to the location of the property, Ms Bhatt said:
“[Y]ou failed to take into account that the Council's resources are severely strained. When sourcing accommodation local authorities have to be mindful about the costs they incur for each property. When a household is placed in accommodation, they can only be charged the local housing allowance however, the actual cost of procuring the accommodation charges for accommodation is higher than this, and this cost is incurred by the local authority. Moreover, and for your information, whilst we do our best to house all applicants in their area of choice and as close to the previous residence before they became homeless as far as it is reasonably practical unfortunately this is not always possible. The demand for housing far outweighs the supply, and local authorities have no option but to source accommodation not just outside the borough, but even outside of London and this was the case with you even though it took some time.”
Ms Bhatt went on to explain that it had “been demonstrated that you would have been unable to afford accommodation in Zone A [i.e. within the borough itself] considering the information on file and your individual circumstances”, but that she had none the less checked what properties were available when Ms Zaman was offered the Stoke-on-Trent accommodation. Aside from 65 Longshaw Street itself, these comprised rooms, 1-bedroom or (in one case) 5-bedroom temporary accommodation or a room in shared accommodation. Ms Bhatt continued:
“122. I have demonstrated above why you were not provided with a Zone A property or a property in London. This is because there were no properties that were available and suitable for your household apart from the property that was offered to you in Stoke On Trent.
123. In line with our Policy, the property offered at 65 Longshaw Street … was the only property available at the point of offer and this was an appropriate offer for you and your household. As is demonstrated, there was no other 3-bedroom property available to us in London or near London.
124. In any event, when examining your case overall, it is reasonable for me to say that even if there were 3-bedroom properties available in London or near London, it is unlikely that they may have been offered to your family unit for the reason that you were a non-working household at the time, who was benefit capped and with children who were not at a critical stage in their studies. And if anything, it is possible that they would have been offered to families who would have fallen within the criteria for a placement within the borough or within London.”
On 28 September, when Ms Bhatt drafted her letter, there was no 3-bedroom accommodation available anywhere, even in Waltham Forest's “Zone C” (i.e. locations other than the borough itself and “neighbouring districts in Essex, Hertfordshire, Kent, Surrey, Berkshire and Buckinghamshire” – see paragraph 39 below).
On 29 October 2021, Mr Bernardi wrote to Ms Bhatt in response to her “minded to” letter of 29 September. Mr Bernardi's letter included these passages:
“[W]e submit that the Council has unlawfully adopted a policy of rehousing homeless households in Stoke-on-Trent, presumably via a supply agreement with a housing provider in that area. This is evident from the fact that over the past two financial years, the Council has rehoused 121 homeless households in...
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