December 11th, 2018 by James Goudie KC

In Alibkhiet v Brent LBC and Adam v City of Westminster (2018) EWCA Civ 2742 Lewison LJ began his Judgment (with which Henderson and Asplin LJJ agreed) as follows:-

“You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London; and that local government finance is severely stretched. Under the homelessness legislation housing authorities in London have duties to procure housing for the homeless; and must, so far as it is reasonably practicable to do so, accommodate such persons within their own district. These joined appeals concern the lawfulness of the decisions and process by which two London boroughs, in purported exercise of their statutory duty, made offers to accommodate homeless persons outside their respective districts. …”It was not in dispute that the local housing authority in each of these appeals owed the relevant applicant the full housing duty imposed by Section 193 of the Housing Act 1996. That duty is a duty to “secure that accommodation is available for occupation by the applicant”. The duty may be discharged if the housing authority makes an offer of accommodation which an applicant refuses. The housing authority may discharge their duty only in certain specified ways, one of which is by securing that an applicant obtains suitable accommodation from a third party: Section 206 (1). In addition, an authority must not make a final offer unless they are satisfied that “the accommodation is suitable for the applicant”: Section 193 (7F). Since changes brought about by the Localism Act 2011 a housing authority may discharge its duty by making a private rented sector offer. The criteria applicable to such an offer are set out in Section 193 (7AC). The relevant criterion for present purposes was: “(c) the tenancy being offered is a fixed term tenancy … for a period of at least 12 months.”

Section 208 (1) provides that:

“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.”

The Secretary of State has power to make regulations specifying circumstances in which accommodation is or is not to be regarded as suitable; and matters to be taken into account or disregarded in determining that question: Section 210 (2). The Regulations in force at the date of the impugned decisions were the Homelessness (Suitability of Accommodation) (England) Order 2012. Article 2 of the 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;

c. 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.”

In addition to complying with the Order, a housing authority is also required to “have regard to such guidance as may from time to time be given by the Secretary of State”: Section 182. That guidance states:

“48. 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 authority has a justifiable reason or the applicant has specified a preference.

49. Generally where possible 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. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.”

An applicant is entitled to request a review of any decision of a housing authority as to the suitability of accommodation offered to him: Section 202 (1). If the result of the review is to confirm the original decision, the reviewing officer must give reasons for the decision: Section 203 (4). An applicant dissatisfied with a review decision may appeal to the County Court on a point of law; and in determining the appeal the County Court must apply the principles applicable to judicial review. On appeal the Court may make such order confirming, quashing or varying the decision as it thinks fit: Section 204 (3).

Also Section 11 of the Children Act 2004 requires a local authority to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children.

Lewison LJ spoke about the juidicialisation of welfare services. He said:-

“36. In R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557 Lady Hale warned against the “judicialisation of claims to welfare services”; a warning that Lord Carnwath repeated in Poshteh v Kensington & Chelsea RLBC [2017] UKSC 36, [2017] AC 624 at [22]. He also noted at [35] the range of factors, including allocation of scarce resources, to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation.”

As regards In-borough accommodation, Lewison LJ referred to the leading case on Section 208, Nzolameso v Westminster City Council (2015) UKSC 22, (2015) PTSR 549. He described it (paragraph 45) as being in essence a reasons challenge. He drew (paragraph 46) the following Key points from the case:


“i)         A housing authority is entitled to take account of the resources available to it, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in its area, and the practicalities of procuring accommodation in nearby boroughs.


  1. ii) If there is available accommodation within-borough, it does not follow that the authority must offer it to a particular applicant because it may be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future.


iii)     The decision in an individual case may depend on a policy that the authority has adopted for the procurement and allocation of accommodation.

iv) The policy should explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away.v) The policy should be publicly available.

Lewison LJ added (paragraph 48:-

“… The policy must, of course, be a lawful one; and conformably with public law principles relating to policies there must be room for the exceptional case. But in principle, where a public authority has a lawful policy, then provided that it implements the policy correctly its decision in an individual case will itself be lawful: …”

Lewison LJ then addressed (paragraphs 49-53 inclusive) the adequacy of reasons. He further said about the Section 208 duty (paragraph 68):-

“It is common ground that a decision when to discharge the full housing duty by making a private rented sector offer is a question of discretion for the authority. Westminster’s policy is to make such an offer whenever the law allows it. …”

Lewison LJ said (paragraph 75):-

“… I would accept that in some cases considerations of timescale are relevant considerations. If, for example, a housing authority is aware that a development is approaching completion and that it will provide affordable housing, that may well be relevant to the question whether it should discharge its housing duty immediately, or whether it should wait until the development is complete. … If a housing authority decides to discharge its full housing duty by making a private rented sector offer, I do not consider that it must wait in the Micawberish hope that “something will turn up”. …”

Both authorities were held to have acted lawfully.

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