Father had “no right” to expect council to place particular weight on religiously-motivated choice of school when providing accommodation, Court of Appeal rules

The Court of Appeal has dismissed a father’s appeal regarding the suitability of accommodation offered by the London Borough of Waltham Forest, which was distant from his child’s private faith school.

In Ghaoui v London Borough of Waltham Forest [2024] EWCA, the appellant contended that the council had failed to recognise that his preference for single-faith education was a freedom protected under Article 9 of the European Convention on Human Rights.

However, Lord Justice Peter Jackson concluded the appellant had “no right” to expect the council to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property.

Outlining the background to the case, the judge said the family lived in the area of the respondent local authority, the London Borough of Waltham Forest, but in April 2019 they were given notice to leave their privately rented accommodation.

In September of that year, the appellant placed his older child in the nursery of an Academy, in the council’s area. It is a private fee-paying school, open only to those of the Islamic faith, said the judge.

In March 2020, the family was evicted and the council provided temporary accommodation in the Harlow area.

The accommodation was some 20 miles from their previous address, which made it harder for the parents to attend their workplaces in London and for the child to go to school.

In November 2021, the local authority confirmed that it owed the family a main housing duty under section 193 of the 1996 Act. It offered the family a 12-month fixed term assured shorthold tenancy with a private landlord, again in Harlow.

The appellant instructed solicitors. In December 2021 they requested a review of the suitability of the offered accommodation and in April 2022 made representations.

On 13 September 2022, the reviewing officer spoke to the appellant. The officer said that there was “no legal duty” to provide accommodation that allowed the children to attend a specific religious school.

On 7 November 2022, the appellant filed an appeal to the County Court. He argued that the council had failed to take into account the family's rights under Article 9 of the European Convention on Human Rights, and had failed to consider the "human rights implications" of its decision, as required by paragraph 1.28 of the Code of Guidance.

It was also said that the council was wrong to class faith education as not being a "need" and in doing so failed to treat it as a relevant circumstance.

Peter Jackson LJ said: “Addressing the core of the Appellant's case, the recorder accepted that the Respondent had to take account of any human rights implications in the exercise of its powers. She accepted that a parent electing to send their child to a single-faith school is a manifestation of religious belief. The real question on the appeal was whether the officer's treatment of that issue was an interference with the right protected by Article 9. She could not see a proper basis for concluding that it was.”

The recorder dismissed the appeal and confirmed the review decision. She said: “Respecting someone's article 9 freedoms does not mean elevating a parental choice into a mandate to which everything else must cede."

Turning to the present appeal, Peter Jackson LJ said the main element of the appellant's case contended that the review decision was unlawful because it did not recognise that his preference for single-faith education was a freedom protected under Article 9 and did not then go on to assess suitability on that footing (Ground 1).

He added: “Ground 2 frames the argument with reference to the obligation in the Homelessness Code to consider the human rights implications of decisions. Ground 3 asserts that a dismissive characterisation of the preference as not being a 'need' failed to give proper recognition to the freedom protected by Article 9.”

Mr Mullin for the local authority submitted that it cannot be argued the reviewing officer left the appellant's preference in regard to schooling out of consideration, and she was “not obliged to prioritise it”. It was argued she “repeatedly” referred to the issue in the review decision.

Concluding the case, Peter Jackson LJ found there was no error of law in the review decision, and that the recorder was right to say so.

In his discussion of Ground 1, he said: “Once the matter became the subject of an appeal, the recorder held that there had in fact been no interference with Article 9. She was entitled, indeed right, to reach that conclusion on the facts of this case for the reasons she gave: the Appellant had no right to expect the Respondent to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property. The question of justification therefore did not arise. Had it done so, the Appellant would likely have faced an insuperable task in showing that his faith-based preference should give him priority over other homeless persons.”

On Grounds 2 and 3, he said: “Ground 2 fails for the reasons I have given above. Paragraph 1.20 of the Homelessness Code requires officers to address the substance of the issue giving rise to a human right; it does not require the officer to follow a particular process.

“As to Ground 3, I again agree with Mr Mullin. Although the officer did not accept that single-faith education was a need, she paid considerable attention to the schooling issue and reached a decision about suitability that was plainly open to her.”

Peter Jackson LJ dismissed the appeal. Lord Justice Newey and Mr Justice Cobb agreed.

Lottie Winson