Out-of-area placements and Part VII Housing Act 1996

Angela Piears analyses a recent decision of the Court of Appeal concerning offers of accommodation outside two authorities’ borough areas.

in the linked appeals of Alibkhiet v. London Borough of Brent and Adam v City of Westminster [2018] EWCA Civ 2742 the Court considered whether there was adequate reasoning for making out-of-borough offers, and whether the offers were made in accordance with each authority’s policy.

These were linked appeals from the County Court at Central London, decided by His Honour Judge Saggerson. The Court of Appeal judges were Lord Justice Lewison, Lord Justice Henderson and Lady Justice Asplin.

Facts

In both cases a full housing duty under section 193 Housing Act 1996 had been accepted and accommodation offered outside the districts. The applicants refused and the authority considered its duty discharged in each case under section 208.

In Alibkhiet, an Eritrean national had been given leave to remain in the UK and his wife and four-year-old daughter joined him. He applied to Brent and was offered a flat in the West Midlands as the nearest affordable accommodation.

He refused the offer. On review the decision to make that offer was upheld. There was a shortage of affordable private rented accommodation in and around Brent and communication links between Brent and Birmingham were good.

Mr Alibkhiet appealed to the county court and argued that there were affordable properties in Brent or nearby when the flat in Birmingham was offered. He was successful and the judge quashed the review decision because a property in Acton had been available but was not offered to him. The authority appealed.

In Adam, Westminster accepted a full housing duty to a divorced woman with three children. There was a shortage of accommodation in the borough and the authority considered it needed to use accommodation outside, in accordance with its policy, and made an offer in Worcester Park.

A review was requested on the basis of the suitability of the accommodation offered. The review officer considered the accommodation was suitable.

Ms Adam appealed on the basis that Westminster did not make sufficient efforts to comply with its duty to house her in the borough if reasonably practicable, and that the authority did not give adequate reasons for its decision. On appeal in the county court, the judge upheld the decision. Ms Adam appealed.

Discussion

There were a number of key issues that the Court of Appeal addressed and in each one it upheld decisions made in earlier cases:

Claims to welfare services (following R (on the application of A) v Croydon LBC [2009] UKSC 8 and Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36):

There was a severe housing shortage and the financial and staffing resources of local authorities were stretched at a time when the authority was struggling to cope with the number of homelessness applications, and the court must be wary of imposing onerous duties on the authorities. However, obviously, unlawful decisions must be quashed.

In-borough accommodation (following Nzolameso v Westminster City Council [2015] UKSC 22):

A local authority could consider available resources, difficulties of obtaining sufficient temporary accommodation at affordable prices in its area and the practicality of obtaining accommodation nearby. It did not have to offer accommodation in the borough if strategically it was advisable to keep some back for other applicants. However, the authority’s policy should be clear about what factors it would take into account, and its policy should be available to the public.

Adoption and application of a policy (following Nzolameso v Westminster City Council [2015] UKSC 22 and Mandalia v Secretary of State for the Home Department [2015] UKSC 59):

If there was a lawful policy that was put into practice properly, then a decision would be lawful.

Adequacy of reasons: (following South Buckinghamshire DC v Porter [2004] UKHL 33 and Rother DC v Freeman-Roach [2018] EWCA Civ 368) and Holmes-Moorhouse v Richamond upon Thames LBC [2009] 1 WLR:

There were two issues involved in giving adequate reasons: for the parties to know why a decision had been made; and for a court to consider whether the decision was lawful. However, the reasoning did not need to set out everything about law and performance, and a benevolent approach was to be taken when looking at review decisions, including the language used, and any inconsistencies. The court’s approach should be realistic and practical, and not nit-picking.

Decisions

Alibkhiet: Brent’s appeal was allowed. Mr Alibkhiet did not qualify for priority for a placement in Greater London under the local authority’s housing policy and the Review Letter did give adequate explanation about that. Although it could have been expressed in a better way, the Review Letter was lawful. The reasons included that Brent did not have access to accommodation in London and the surrounding area. The West Midlands was apparently the next available area, for reasons including the lines of communication between the local authority and the available accommodation, and the court considered that this was a legitimate factor for the authority to take into consideration.

Adam: The appeal by Ms Adam was dismissed. The Court of Appeal held that if an authority decided to discharge its duty by making an offer of accommodation that was in the private rented sector, then it did not have to wait to do so, in case a property became available in the borough. The court held that the local authority had considered what was suitable accommodation on the day it made its offer, and made a decision that was adequately reasoned.

Angela Piears is a barrister at 42 Bedford Row. She can be contacted on 020 7831 0222 or This email address is being protected from spambots. You need JavaScript enabled to view it.