Court of Appeal rejects appeal by council over timing for review of suitability of accommodation where offer had been accepted

The Court of Appeal has said that where a homeless applicant had accepted the accommodation offered, a council conducting a subsequent review under s.202 of the Housing Act 1996 was required to reconsider its decision to secure accommodation outside the local authority's area in the light of all material circumstances at the date of the review, not that of the original decision.

In London Borough of Waltham Forest v Saleh [2019] EWCA Civ 1944 Patten LJ said: “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.”

HHJ Saggerson had ruled in favour of Mr Saleh in 2018, concluding that when conducting the review the review officer must reconsider the decision in the light of all relevant circumstances at the date of the review. Waltham Forest appealed against this.

The Saleh family had been accommodated in neighbouring Newham but Mr Saleh later completed a disability and health questionnaire on behalf of his daughter Sara, requesting the family be re-housed in Waltham Forest "as close as possible to [Sara's] school, family, friends and hospital”.

In response, the council’s reviewing officer said: “The…policy which prevailed at the time you were offered [the home in Newham] does not differ substantially from the current one.”

The letter added: “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 and your place of work. It is clear that by offering you accommodation near to its own borough the [council] gave you household priority over other households.”

But the judge said the reviewing officer “did not consider was whether, at the time of the review, any suitable accommodation was available within or closer to the council's district”.

HHJ Saggerson held that this failure was an error of law which vitiated the review decision. HHJ Saggerson said: "The criticism of the Review Officer is that the test that has been applied is the test as to the availability of suitable accommodation, at the date the original offer of the accommodation was made. That is likely to be the appropriate time to apply the test in cases where an Appellant has refused the original offer of out-of-borough accommodation, but it is not the proper test where the offer has been accepted. Where an offer has been accepted, as it has in this case for whatever reason, the appropriate time at which the Review Officer has to consider the availability and suitability of out-of-borough alternative accommodation must be at the date of the review."

Patten LJ found that the relevant legal authorities supported HHJ Saggerson’s decision and, while expressing some sympathy with the argument that the burden on local housing authorities should not be unnecessarily increased, said the council had tabled no evidence that there was any practical difficulty to conducting new reviews from scratch.

“It seems to me that, consistently with these authorities, we should treat the obligation of the council to review its decision to secure accommodation for Mr Saleh [in Newham] as requiring it to reconsider that decision in the light of all material circumstances at the date of review including the availability of suitable accommodation either within or closer to its district and the school which his daughter attends.

“Since it is common ground that the review officer did not do this, it follows that the judge was right to allow Mr Saleh's appeal and to set her decision aside.”

Mark Smulian