Housing case law update – April 2023

Emily Howe, Kelly Lloyd and Laura Waby round up the latest housing law judgments of interest to housing associations and local authorities.

Zaman v Waltham Forest LBC; Uduezue v Bexley LBC [2023] EWCA Civ 322

Court of Appeal, 24 March 2023

The Court of Appeal has held that two local housing authorities which made “out-of-borough” offers of accommodation to two homeless applicants had not properly discharged their duty to provide accommodation under section 193(2) the Housing Act 1996.

The two appellants (“Z” and “U”) were homeless and in priority need for housing. The two local authorities accepted that they owed the appellants a duty to provide accommodation under section 193(2) of the Housing Act 1996.

Both appellants had lived in London with their three children, but due to a shortage of affordable housing, were offered three-bedroom accommodation outside their local authority's borough. Z was offered accommodation in Stoke-on-Trent, 160 miles away, and U was offered accommodation in Chatham, 20 miles away. Both Z and U rejected the offers because the properties were situated a long distance from London, where they both had family and friends and where their children’s schools were situated. The two local authorities believed that they had made an offer of suitable accommodation and, thus, their section 193(2) duties had been brought to an end; no further offers of accommodation would be made. Z and U both appealed, unsuccessfully, to the County Court. However, in conjoined appeals, Z and U appealed against the County Court decisions.

The Court of Appeal allowed Z’s appeal, finding that a local authority was required, where possible, to try to place a housing applicant as close as possible to where they had previously been living. There was no evidence that the local authority had tried to do this. In regard to U’s appeal, the Court held that the local authority had, when making the offer, failed to inform U of the implications of s.195A(2) of the Housing Act 1996 – this failure rendered the property offer invalid. Section 195A of the Housing Act 1996 provides that if, within two years of the date on which an applicant accepts a private rented sector offer, the applicant re-applies for accommodation – and the authority is satisfied that the applicant is homeless, eligible for assistance and is not intentionally homeless – the duty under section 193(2) the Housing Act 1996 applies regardless of whether the applicant has a priority need.

This decision will be of interest to local housing authorities, as it outlines the key issues and steps that should be taken when making lawful “out-of-borough” offers of accommodation to homeless applicants.

A copy of the judgment is here.

Birmingham City Council v Bravington [2023] EWCA Civ 308

Court of Appeal, 22 March 2023

The Court of Appeal has held that the service of notice by local authorities under section 233 of the Local Government Act 1972 applied to the service of a notice of seeking possession, and that leaving the notice at the tenant’s address was valid service.

The respondent (“Mr Bravington”) was a secure tenant of a flat owned by Birmingham City Council. Mr Bravington was convicted of offences of racially/religiously aggravated intentional causing of harassment/alarm/distress and Birmingham City Council sought to serve a notice of seeking possession (“NoSP”). A certificate of service recorded that service was effected at the property after a letter containing the NoSP was handed to Mr Bravington’s girlfriend. Birmingham City Council issued possession proceedings on the basis that the convictions constituted an absolute ground for possession for anti-social behaviour under section 84A of the Housing Act 1985.

Mr Bravington denied seeing the NoSP before the claim was served on him. The County Court granted Mr Bravington’s application for summary judgment, which was upheld on appeal, on the basis that Birmingham City Council had no real prospect of proving that the NoSP had been effectively served on him. The claim for possession of the flat was therefore dismissed. Birmingham City Council appealed, arguing that section 233 of the Local Government Act 1972, which permitted service by leaving notice at an individual's address, applied to an NoSP.

The Court of Appeal, in allowing the appeal, held that Mr Bravington had been properly served. The NoSP fell within section 233 of the Local Government Act 1972 and handing it to his girlfriend at the flat satisfied the service requirements. It was irrelevant when Mr Bravington became aware of the NoSP. Section 233 offered a local authority a choice of modes of service which were valid even if the recipient did not receive the notice.

The decision provides clarity to local authorities of the application of section 233 of the Local Government Act 1972. It gives a wide meaning to section 233 and will help to prevent tenants from frustrating the actions of local authorities.

A copy of the judgment is here.

R. (on the application of Davidson) v Cambridge City Council

High Court, 28 March 2023

The High Court has held that a local authority should provide a claimant with alternative accommodation as he had an arguable case that he was being housed in unsuitable accommodation which aggravated his mental health issues.

The claimant (“Mr Davidson”) had become homeless due to alcoholism. He was housed by Cambridge City Council in temporary accommodation, which included a shared bathroom and kitchen. After he was assaulted by another resident, his support worker raised concerns about his safety and his GP advised that his living conditions had exacerbated his mental health problems (he suffered from depression and had tried to commit suicide on two occasions). Mr Davidson sought judicial review, contending that the temporary accommodation was unsuitable under section 188 of the Housing Act 1996. Cambridge City Council countered this, arguing that the accommodation could not be deemed unsuitable, as it included a private room with access to a bathroom and kitchen facilities and was located close to his support worker and his GP.

The High Court granted permission for judicial review and issued an interim injunction that required Cambridge City Council to provide suitable accommodation. Although the temporary accommodation did not have to be perfect, it did have to be suitable. While the location was convenient for his support worker and GP, it was also very close to the bridge from which he had previously tried to commit suicide. It was therefore reasonably arguable that Cambridge City Council had acted irrationally by considering the accommodation to be suitable.

This is an extempore (oral) judgment, so there is currently no transcript of the case.

Poshteh v Royal Borough of Kensington and Chelsea

County Court (Central London), 22 February 2023

The County Court has overturned a local authority’s decision that an applicant had become intentionally homeless.

An applicant (“Ms Poshteh”), an asylum seeker who had been granted indefinite leave to remain in the UK after she had been imprisoned and tortured in Iran, applied to the Royal Borough of Kensington and Chelsea (“RBKC”) for homelessness assistance. RBKC provided her with temporary accommodation and acknowledged its duty to secure accommodation for her under section 193 of the Housing Act 1996. Ms Poshteh was subsequently offered a first-floor flat, but refused the offer on the basis that the property (and in particular a round window at the property) reminded her of the prison she had been kept in in Iran, causing her to suffer flashbacks and a panic attack.

Ms Poshteh’s medical reports did not specifically mention that she should not be housed in a building with round windows. RBKC therefore treated her refusal of the offer as bringing its section 193 housing duty to an end. However, Ms Poshteh provided letters from her GP and a therapist which indicated that her mental state meant that she would be unable to accept any offer of high-rise accommodation, as it was reminiscent of a prison cell. The housing review officer upheld the decision that the section 193 housing duty had been discharged, finding that the medical evidence did not suggest that the window sizes were unsuitable on medical grounds and that there was sufficient natural light in the flat so that it was not reminiscent of a prison cell. Ms Poshteh unsuccessfully appealed the decision to the County Court. Further appeals to the Court of Appeal (click here) and to the Supreme Court (click here) in 2015 and 2017 respectively were also rejected.

When making its decision, the Supreme Court held that the duties imposed on local housing authorities under Part VII (“homelessness”) of the Housing Act 1996 did not give rise to “civil rights” or “obligations” and therefore Article 6 (“right to a fair hearing”) of the European Convention on Human Rights did not apply. In November 2018, Ms Poshteh’s complained to the European Court of Human Rights that under Article 6 her challenge to the decision that RBKC had discharged its statutory duty to provide her with accommodation had not been subject to sufficient scrutiny by an independent and impartial tribunal. Her application was rejected – click here.

At a later date, Ms Poshteh applied again to the RBKC for homelessness assistance, but RBKC decided that she had become homeless intentionally. The decision was upheld on review in November 2021. Ms Poshteh again appealed the decision to the County Court, which, in allowing the appeal, held that the reviewing officer’s decision that she had been aware that she could have accepted the accommodation she had been offered and still ask for a review of the decision was irrational. The decision was therefore changed to show that Ms Poshteh had not become homeless intentionally.

A copy of the judgment is currently not available.

Emily Howe is an Associate and Kelly Lloyd and Laura Waby are Senior Associates at Capsticks.