Judges allow appeal from residents in out-of-borough accommodation disputes

Two residents have won cases in the Court of Appeal against decisions by London boroughs to move them to private rented accommodation outside the capital.

Lord Justice Newey, sitting with Lady Justice Asplin and Lady Justice Nicola Davies, granted both appeals, which were heard together although the cases were unconnected.

Newey LJ noted that in Alibkhiet v Brent London Borough Council [2018] EWCA Civ 2742, [2019], Lewison LJ had remarked: “You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London” and added this was largely why it was now common for London councils to offer those to whom they owe the ‘main housing duty’ under section 193(2) of the Housing Act 1996 accommodation sometimes distant from the borough concerned.

In the first case, the London Borough of Waltham Forest offered Nadia Zaman accommodation in Stoke-on-Trent, more than 160 miles from where she was living.

Ms Zaman occupied a property with her three children but struggled to afford the rent and in November 2019, received a no-fault eviction notice and approached Waltham Forest for assistance under Part VII of the 1996 Act.

The council accepted it owed her ‘the main housing duty’ and provided temporary accommodation in the borough.

Some months later Waltham Forest told Ms Zaman it had decided to offer an assured private shorthold tenancy with a fixed term of 24 months in a three-bedroom maisonette in Stoke-on-Trent. It warned the offer would discharge its duty whether she accepted or not.

Ms Zaman rejected the offer and Camden Community Law Centre wrote to Waltham Forest on her behalf asking it to withdraw the offer and make an alternative one in or near Waltham Forest.

She said she was an informal carer for her mother, who lived locally, her children were settled at a local primary school and she required support from her sister and mother to help with childcare.

The council upheld its decision at review and told Ms Zaman she had “failed to take into account that the council’s resources are severely strained”.

A letter from the council noted a household can only be charged the local housing allowance even when “the actual cost of procuring the accommodation charges for accommodation is higher than this, and this cost is incurred by the local authority”.

In any event there were no suitable local properties available and Ms Zaman could not have afforded them anyway, Waltham Forest said.

Ms Zaman appealed unsuccessfully to the County Court under s204 of the 1996 Act.

Newey LJ said he could concentrate on one strand of the case: that it was incumbent on Waltham Forest to secure accommodation as close as possible to where Ms Zaman was living and that the evidence did not show it had.

Ms Zaman argued that Waltham Forest had not produced evidence demonstrating that it had been impossible to obtain accommodation nearer to the borough and had not adequately explained this omission.

A response by Waltham Forest to a freedom of information request showed Stoke-on-Trent accounted for 51 of its 116 housing offers made outside immediate neighbouring areas and Ms Zaman argued this meant the council had not been trying to obtain accommodation as close as possible to the borough.

Newey LJ said: “It was incumbent on Waltham Forest to try to accommodate homeless households as close as possible to the borough even where accommodation was available only [beyond it] unless there was a particular reason not to do so.”

He said there was no fault in Waltham’s Forest’s accommodation acquisitions policy, but there was “a dearth of evidence to show that it was followed, and common sense rather suggests that it was not”.

Allowing the appeal, he added that while the policy was lawful “it is not apparent that it was duly implemented or, therefore, that [Stoke-on-Trent] was the closest property to the borough that the council could secure”.

The second case was brought by Rita Ifeoma Uduezue again the London Borough of Bexley, which she had approached for assistance under Part VII of the 1996 Act in September 2019.

Bexley provided temporary accommodation in the borough but then said she and her three children - one a baby - should move to a rented property in Chatham.

Ms Uduezue protested that she had just had a premature baby who was still under surveillance by doctors and that her own health and been affected which meant she and her children needed support from friends and family in Bexley.

The council replied that adequate schools and hospitals were available in Chatham and she could still contact support networks remotely.

Ms Uduezue’s appeal concerned whether Bexley wrongly failed to consider the possibility of offering her two-bedroom accommodation, rather than three - in which case a nearer proper might have been available - failed to take proper steps to assess the impact of a move to Chatham on her eldest daughter’s education and failed to identify the private landlord in Chatham.

She also argued that Bexley did not inform her of “the effect under section 195A of a further application to a local housing authority within two years of acceptance of the offer” in accordance with section 193(7AA) and (7AB) of the 1996 Act in that she was not told of the effect of section 195A(2).

Newey LJ said the council had been entitled not to further investigate the impact on the eldest daughter and “Ms Uduezue had highlighted her concerns, and they did not obviously raise any point that called for additional investigation.” He also said there was no requirement to identify the landlord.

Ms Uduezue was though successful in arguing that she was not told of the effect of section 195A(2).

Allowing the appeal, Newey LJ said: “Where a person to whom a local housing authority owed the ‘main housing duty’ was not informed of the matters mentioned in section 195(7AB), the duty simply continues, the conditions for its cessation not having been met.”

Lady Justice Asplin and Lady Justice Nicola Davies agreed.

Mark Smulian