The Mayor and Burgesses of the London Borough of Waltham Forest v Saleh

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Patten,Lady Justice Asplin,Sir Rupert Jackson
Judgment Date19 November 2019
Neutral Citation[2019] EWCA Civ 1944
Docket NumberCase No: B5/2018/2701
Date19 November 2019

[2019] EWCA Civ 1944

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON

HH Judge Saggerson

EC40CL193

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Patten

Lady Justice Asplin

and

Sir Rupert Jackson

Case No: B5/2018/2701

Between:
The Mayor and Burgesses of the London Borough of Waltham Forest
Appellant
and
Saleh
Respondent

Mr Nicholas Grundy QC and Ms Victoria Osler (instructed by The London Borough of Waltham Forest) for the Appellant

Ben Chataway (instructed by SA Law Chambers Solicitors) for the Respondent

Hearing date: 8 October 2019

Approved Judgment

Lord Justice Patten
1

This is an appeal by the London Borough of Waltham Forest (“the Council”) against a decision of HH Judge Saggerson made on 18 October 2018 on an appeal under s.204 of the Housing Act 1996 (“HA 1996”). The central issue on this appeal is whether, in conducting a review of a homelessness decision under s.202 HA 1996, the review officer must reconsider the decision in the light of all relevant circumstances at the date of the review or is limited to a reconsideration of the facts as they stood at the date of the original decision. The particular issue in this case is whether the review officer, in reconsidering a decision to provide accommodation for Mr Saleh, the respondent, and his family outside the Council's own district, ought to have taken into account the availability as at the date of review of any suitable accommodation either within or closer to that district.

2

In August 2014 Mr Saleh applied to the Council for housing under Part 7 HA 1996 on the basis that he and his family were homeless. He has six children and had been living in privately rented accommodation in Walthamstow from about 2000. The Council accepted that Mr Saleh was in priority need and had not become homeless intentionally so that he was owed the full housing duty under s.193. The Council was therefore obliged to secure that accommodation was available for occupation by him and his family (see s.193(2)) and that such accommodation was suitable: see s.206(1). But in discharging these functions the Council may in certain circumstances secure the provision of accommodation outside their own Local Housing Authority district (“LHA”). 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

Once the Council had accepted that it owed Mr Saleh and his family a s.193 duty they were placed into emergency accommodation in Hackney. This was in August 2014. They occupied this accommodation until October 2014 when the Council secured temporary accommodation for them at 116 London Road, Romford. In the meantime, Mr Saleh's daughter, Sara, had begun school in Walthamstow.

4

In October 2015 Mr Saleh's mother came to live at 116 London Road and Mr Saleh then began to challenge the suitability of the accommodation on the ground, inter alia, that it was too small. The Council accepted this in February 2016 and on 28 February 2017 they offered Mr Saleh temporary accommodation at 179 Little Ilford Lane which is in the London Borough of Newham, outside the Council's own district. Mr Saleh accepted the offer but later in August 2017 he completed a “Disability and Health Questionnaire” on behalf of his daughter, Sara, and requested that his family be re-housed within the Council's district so that they could be “as close as possible to [Sara's] school, family, friends and hospital”.

5

Sara suffers from Type 1 diabetes which has on occasions necessitated hospital treatment. She has also suffered episodes of incontinence during her journey to and from school. Each journey takes up to one hour.

6

On 26 October 2017 the Council informed Mr Saleh that having considered the information contained in the questionnaire it still considered that the accommodation at 179 Little Ilford Lane remained suitable for him and his family. Mr Saleh requested a review of the decision as provided for under s.202 HA 1996. So far as material, this states (as amended):

“(1) An applicant has the right to request a review of—

(a) any decision of a local housing authority as to his eligibility for assistance,

(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness),

(c) any decision of a local housing authority to notify another authority under section 198(1) (referral of cases),

(d) any decision under section 198(5) whether the conditions are met for the referral of his case,

(e) any decision under section 200( 3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred),

(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7), or

(g) any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193).

(1A) An applicant who is offered accommodation as mentioned in section 193(5), ( 7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer.

(2) There is no right to request a review of the decision reached on an earlier review.

(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.

(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.”

7

In his request for a review, made through Shelter, Mr Saleh relied principally upon the impact on Sara of the journey between 179 Little Ilford Lane and her school in Walthamstow. This, it was said, rendered the accommodation unsuitable. The request for review stated:

“I would like to bring to the attention of the [Council] the recent judgment from the Supreme Court of Nzolameso v City of Westminster … Under section 208(1) [of HA1996] the [Council] have a statutory duty to provide accommodation in their own area “so far as reasonably practicable.

We are instructed that no investigations were carried out to demonstrate any consideration of Mr Saleh's household's circumstances have been taken into account.

Paragraph 19 of the judgment in Nzolameso states that: “The effect, therefore, is that [LHAs] 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 reasonable. But if it is not reasonably practicable to accommodate “in borough”, they must generally, and where possible, try to place the household as close as possible to where they were previously living.

Conclusions:

I believe that … 179 Little Ilford Lane is not suitable for the needs of [Mr Saleh] and in particular … Sara.

Sara has Type 1 diabetes and has provided supporting medical evidence regarding a move closer to school and hospital.

I ask the [Council] overturns their decision that the accommodation is suitable and carefully consider [Mr Saleh's] household's circumstances before offering further temporary accommodation.”

8

There was a telephone conversation between Mr Saleh and the review officer (Ms Kristine Ross) on 19 June 2018 but on 26 June 2018 the review officer notified Mr Saleh that, having reviewed the decision and considered the published Housing Act guidance and the decision in Nzolameso v City of Westminster CC [2015] UKSC 22 (“ Nzolameso”), she was satisfied that the accommodation at 179 Little Ilford Lane was in all respects suitable for him and his family.

9

Many of the factors considered in the decision letter are not directly relevant to the issues raised on this appeal. But in the part of the letter which responds to Mr Saleh's submission that the Council has a duty under s.208(1) to provide accommodation within its district so far as reasonably practicable, the review officer refers to the need (recognised in the Homeless Code of Guidance) for local authorities to have in place policies for procuring sufficient units of temporary accommodation and for prioritising the allocation of in-district accommodation at times when the supply is inadequate to meet demand. Her letter goes on:

“… In March 2017, when you were offered accommodation within the Borough of Newham, [the Council] had both such policies in place. … The … policy which prevailed at the time you were offered 179 little Ilford Lane does not differ substantially from the current one. It listed groups of households who needed to be prioritised for in-Borough accommodation or close to Borough placement, inter alia those working in the Borough, those with one or more children on a child protection plan, or attending a special school as well as those with severe mental health problems or those with one or more children at a crucial stage of their education.

… The housing stock constraints described above are a highly relevant factor in assessing the suitability of … 179 Little Ilford Lane. It is my opinion that when this accommodation was offered to you the [Council] gave appropriate weight to your circumstances in particular the location of your children's schools...

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    ...London Borough Council [2006] 1 All ER 112, were decided.” 26 In a similar vein, in Waltham Forest London Borough Council v Saleh [2019] EWCA Civ 1944, [2020] PTSR 621, Patten LJ, having cited the 2006 Code, the 2012 Order, the 2012 Supplementary Guidance and also the more recent “Homele......

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