Shamso Abdikadir v London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lady Justice King,Lady Justice Asplin |
| Judgment Date | 15 July 2022 |
| Neutral Citation | [2022] EWCA Civ 979 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-001967 |
[2022] EWCA Civ 979
Lord Justice Lewison
Lady Justice King
and
Lady Justice Asplin
Case No: CA-2021-001967
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE SAGGERSON
H40CL162
Royal Courts of Justice
Strand, London, WC2A 2LL
Toby Vanhegan and Stephanie Lovegrove (instructed by Polpitya & Co) for the Appellant
Genevieve Screech-Powell and Clare Cullen (instructed by London Borough of Ealing) for the Respondent
Hearing date: 28 June 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10.30am on 15 July 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
A housing authority offers a homeless person, to whom it owes the full housing duty, an out of district placement, which that person refuses. The housing authority decides that its duty has come to an end; and that decision is upheld on review. But the housing authority did not notify the authority for the district in which the placement was offered. On this appeal it is argued:
i) That the failure to notify invalidates the review decision and
ii) In any event the housing authority did not comply with its statutory duty to secure accommodation within its own district “so far as reasonably practicable”.
The legal framework
Part VII of the Housing Act 1996 imposes duties on local authorities to assist the homeless. The highest form of duty is owed to a person who is eligible, homeless and has a priority need; but who has not become homeless intentionally: section 193. This is conventionally called “the full housing duty”. The duty is to “secure that accommodation is available for occupation by the applicant”: section 193 (2). The duty continues until it ceases by virtue of section 193 itself. Section 193 (5) provides:
“(5) The local housing authority shall cease to be subject to the duty under this section if—
(a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant,
(b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and
(c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.”
Section 206 prescribes the ways in which a housing authority may discharge their duties:
“(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”
In the exercise of their functions relating to homelessness, a housing authority must have regard to any guidance given by the Secretary of State: section 182. Section 208 provides:
“(1) 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.
(2) If they secure that accommodation is available for the occupation of the applicant outside their district, they shall give notice to the local housing authority in whose district the accommodation is situated.
(3) The notice shall state—
(a) the name of the applicant,
(b) the number and description of other persons who normally reside with him as a member of his family or might reasonably be expected to reside with him,
(c) the address of the accommodation,
(d) the date on which the accommodation was made available to him, and
(e) which function under this Part the authority was discharging in securing that the accommodation is available for his occupation.
(4) The notice must be in writing, and must be given before the end of the period of 14 days beginning with the day on which the accommodation was made available to the applicant.”
Running alongside section 208 is the Homelessness (Suitability of Accommodation) (England) Order 2012. Article 2 of that 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…”
The guidance given by the Secretary of State in the Homelessness Code of Guidance is to similar effect. It provides:
“17.49 Where it is not reasonably practicable to secure accommodation within district and an authority has secured accommodation outside their district, the housing authority is required to take into account the distance of that accommodation from the district of the authority. 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 applicant has specified a preference, or the accommodation has been offered in accordance with a published policy which provides for fair and reasonable allocation of accommodation that is or may become available to applicants.
17.50 Generally, where possible, housing 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. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.”
Section 202 provides for a review of certain decisions made by housing authorities. These include any decision of a local housing authority as to the suitability of accommodation offered to an applicant in discharge of the full housing duty; and also a decision by a housing authority that its duty has ceased. There is no explicit right of review of a failure to notify under section 208 (2). Any review is conducted in accordance with the Homelessness (Review Procedure etc) Regulations 2018. Regulation 7 (2) provides that if the reviewer considers that there was a deficiency or irregularity in the original decision, but is minded nevertheless to make a decision which is against the interest of the applicant on one or more issues, the reviewer must notify the applicant that the review is so minded, and the reasons why; and that the applicant may make representations orally or in writing. This stage of the review is conventionally called a “minded to find” letter.
An applicant who is dissatisfied with a decision on review may appeal to the county court on a point of law arising from the decision: section 204 (1). A point of law arises from a decision if it concerns or relates to the lawfulness of the decision: James v Hertsmere BC [2020] EWCA Civ 489, [2020] 1 WLR 3606 at [31]. On an appeal to the county court, the court applies the same principles as those applicable to judicial review. Thus grounds of challenge extend to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. These include challenges on grounds of procedural error, the extent of legal powers ( vires), irrationality, and inadequacy of reasons: James v Hertsmere at [31].
An appeal from the county court to this court is, technically, a second appeal; but the focus for this court is whether the review decision was lawful. The facts are for the reviewing officer. The court has no independent fact-finding function ( R v Hillingdon LBC ex p Pulhofer [1986] AC 484); although a finding of fact may be challenged on public law grounds: Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2006] 2 AC 430, 462.
The facts leading up to the review
Ms Abdikadir applied to Ealing LBC for assistance under Part VII of the Housing Act 1996 on 9 December 2016. On 31 May 2017 Ealing accepted that she was eligible, homeless, had a priority need and that she did not become homeless intentionally. It therefore accepted the full housing duty, which it said it would discharge by arranging an offer of an assured shorthold tenancy in the private sector for a period of at least 12 months. The letter stated:
“You will receive ONE suitable offer. When you receive this suitable offer of private sector accommodation, this will discharge our duty to you whether you accept or refuse the property. If you refuse a suitable offer of accommodation, the Council will have no duty to make any further offers and you will then have to make your own housing arrangements.”
The letter also informed her that she could apply to join the council's housing register which would enable her to bid for properties. But it went on to say that she would be placed in band C and that she would have very little realistic chance of bidding for social housing in the short or medium term. That was because of a shortage of permanent accommodation and because there were many people in higher bands who would have more priority.
On 21 July 2020 Ealing offered Ms Abdikadir what it said was suitable accommodation at 10, Whitehorn Avenue, West Drayton, a four-bedroom property. The head landlord was a registered provider of social housing. The offer letter stated that it...
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