Sahra Moge v London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | Lord Justice Snowden,Lord Justice Males,Lady Justice Thirlwall |
| Judgment Date | 27 April 2023 |
| Neutral Citation | [2023] EWCA Civ 464 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000343 |
[2023] EWCA Civ 464
Lady Justice Thirlwall
Lord Justice Males
and
Lord Justice Snowden
Case No: CA-2022-000343
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE RAESIDE KC
H40CL229
Royal Courts of Justice
Strand, London, WC2A 2LL
Toby Vanhegan and Stephanie Lovegrove (instructed by Polpitiya & Co.) for the Appellant
Genevieve Screeche-Powell and Clare Cullen (instructed by Legal Services, London Borough of Ealing) for the Respondent
Hearing date: 25 January 2023
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 12 noon on 27 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The issue in this appeal is whether, when seeking to discharge its relief duty under section 189B of the Housing Act 1996 (“section 189B” and “the Act”) to take reasonable steps to help the Appellant (“Ms. Moge”) secure suitable accommodation for her occupation, the Respondent local authority, the London Borough of Ealing (“the Council”), acted in accordance with the requirements of 208(1) of the Act, “so far as reasonably practicable … [to] … secure that accommodation is available … in their district”.
The case arises from a decision by the Council on 25 May 2021 to serve notice on Ms. Moge, informing her that it took the view that its relief duty to assist her had come to an end. The reason given was that Ms. Moge had refused an offer of suitable accommodation arranged by the Council of a 24 month assured shorthold tenancy of a two-bedroom flat with a private sector landlord in Elvedon Road, Lower Feltham, in the neighbouring London Borough of Hounslow (“the Flat”). The Council also contended that the consequence of its decision was that it did not owe Ms. Moge the full housing duty under section 193 of the Act.
The legal framework
It is at the outset necessary to distinguish between Parts VI and VII of the Act.
Part VI
Part VI of the Act sets out a regime for the allocation of housing accommodation by a local authority. An applicant for allocation of housing accommodation under Part VI may be a person who is homeless. But it also may be a person who is not homeless, but who is, for example, currently living in unsatisfactory housing conditions, or who has a medical or welfare need.
Under section 159 of the Act, such an allocation might be achieved in a number of ways. For present purposes, these include the selection by the local authority of a person to become a secure or introductory tenant of housing accommodation held by the local authority itself; or the nomination by the local authority of a person to become an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord pursuant to arrangements between the local authority and the registered provider or landlord. An assured tenancy includes an assured shorthold tenancy for this purpose.
Local authorities are required by section 166A of the Act to have a scheme for the allocation of housing accommodation which gives people a choice or the opportunity to express a preference about housing accommodation, and also gives reasonable preference to people in various categories of need. In Ealing and the London Boroughs of Brent, Harrow and Hillingdon, the allocation of housing accommodation by local authorities pursuant to Part VI is administered through an online system called LOCATA, to which a number of registered provider landlords are members and on which available properties are listed. Each local authority is, however, only able to allocate properties located within its own district.
A local authority's duties under Part VII
Part VII of the Act – which is the Part with which this appeal is primarily concerned — imposes duties on local authorities in relation to persons who are homeless. For present purposes it is necessary to distinguish between three different duties: the interim duty under section 188, the full housing duty under section 193, and the relief duty under section 189B of the Act.
Section 188 of the Act applies where the local authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need. In such a case, the authority,
“… must secure that accommodation is available for the applicant's occupation”.
Section 193 of the Act imposes what is conventionally referred to as the “full housing duty”. That full housing duty applies (a) where the authority is satisfied that an applicant is homeless and eligible for assistance and has not become homeless intentionally, (b) where the applicant has a priority need, and (c) where the relief duty has come to an end. Unless the full housing duty is otherwise disapplied, the local authority,
“… shall secure that accommodation is available for occupation by the applicant.”
Section 189B(2) was added to the Act with effect from 3 April 2018 by the Homelessness Reduction Act 2017 (the “2017 Act”). Section 189B(2) imposes an initial duty, conventionally referred to as the “relief” duty, where the local authority are satisfied that an applicant is homeless and eligible for assistance. There is no requirement that the applicant have a priority need. For a period of 56 days, or until the relief duty ends at an earlier stage, the local authority,
“… must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant's occupation for at least six months”.
The Explanatory Notes to the 2017 Act explained the purpose of the relief duty as follows,
“28. Section 189B places a duty on local housing authorities to take reasonable steps for 56 days to relieve homelessness by helping any eligible homeless applicant to secure accommodation.
29. Help would be provided for households whether or not they are in ‘priority need’ under the 1996 Act … Local housing authorities will be required to take reasonable steps that are likely to help the applicant to secure accommodation. Reasonable steps could include, for example, providing a rent deposit or access to mediation to keep households together.”
The local authority's relief duty under section 189B(2) can come to an end in a variety of ways. It will end if the authority is satisfied that suitable accommodation is available for the applicant's occupation for at least six months: it will also end if the authority has complied with its duty to provide help to the applicant for a period of 56 days, whether or not the applicant has secured accommodation: see sections 189B(7)(a) and (b).
Another method by which the local authority may bring the relief duty to an end is under section 193A(1) of the Act. That section applies if, having been informed of the consequences of refusal and the right to request a review of the suitability of the accommodation offered, the applicant refuses either a “final accommodation offer” or a “final Part 6 offer”.
Section 193A(4) defines a “final accommodation offer” as an offer of an assured shorthold tenancy for a fixed term of at least six months made by a private landlord to the applicant pursuant to arrangements made by the local authority in discharge of their relief duty under section 189B(2). A “final Part 6 offer” is an offer of accommodation under Part VI of the Act that is made by the authority in discharge of their duty under section 189B(2) and which states that it is a final offer. By section 193A(6) of the Act, a local authority may not approve a final accommodation offer or a final Part 6 offer unless they are satisfied that the accommodation is suitable for the applicant.
Importantly, if section 193A(1) applies, in addition to ending the relief duty, the local authority will also not be subject to the full housing duty under section 193: see section 193A(3). The making of a final accommodation offer is therefore capable of having very significant consequences for an applicant.
Discharge of functions: section 208(1)
The manner in which a local authority discharges its various duties under Part VII is dealt with in section 205 of the Act as follows,
“(1) The following sections have effect in relation to the discharge by a local housing authority of their functions under this Part to secure that accommodation is available for the occupation of a person—
Section 206 (general provisions),
Section 208 (out-of-area placements),
Section 209 (arrangements with private landlord).
(2) In sections 206 and 208 those functions are referred to as the authority's “housing functions under this Part”.
(3) For the purposes of this section, a local housing authority's duty under section 189B( 2) or 195(2) is a function of the authority to secure that accommodation is available for the occupation of a person only if the authority decide to discharge the duty by securing that accommodation is so available.”
Section 208(1) of the Act – which is the key provision on this appeal – is headed “Discharge of functions: out-of-area placements”. It provides,
“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.”
It is clear that section 208(1) applies to the discharge of a local authority's housing functions under both the interim duty in section 188 and the full housing duty in section 193 of the Act. In those cases the local authority is itself required to secure that accommodation is available for occupation by the applicant. Indeed, the leading cases on the requirements of section 208(1) are all cases in which the applicant was owed the...
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UO v London Borough of Redbridge
...65 I turn to the issue of suitability of accommodation under section 206. In the recent case of Moge v London Borough of Ealing [2023] EWCA Civ 464, Snowden LJ said this:- “22. The concept of “suitability” is central to the ways in which a local authority can discharge its housing function......