The duty to accommodate and out-of-borough housing

The Court of Appeal recently held that a London borough complied with its duty to accommodate as far as reasonably practicable in its area. Genevieve Screeche-Powell and Clare Cullen explain why.

Legal background to the decision in Moge v London Borough of Ealing: section 208 Housing Act 1996

Section 189B, Housing Act 1996 contains a relief duty, owed to applicants who are homeless and eligible for assistance, to take reasonable steps to help them secure accommodation. The relief duty can be brought to an end in various ways including:

• a refusal of a final accommodation offer (an assured shorthold tenancy for at least 6 months) or
• a final Part 6 offer (allocation of housing under an authority’s allocation scheme) under s.193A, Housing Act 1996.

If the relief duty is brought to an end under s.193A, the main s.193(2) housing duty to secure accommodation will not arise.

Section 208(1), Housing Act 1996 requires local authorities to secure accommodation in discharge of their homelessness duties, so far as reasonably practicable, in the local authority’s area.

If it is not reasonably practicable to accommodate in borough, a local authority must try to place a household as close as possible to where they were previously living (Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTRS 549).

Section 205(3) provides that s.208(1) applies to the relief duty when a local authority decides to discharge the duty by securing accommodation.

A decision as to whether s.208(1) has been complied with may depend on the policies that a local authority has for the procurement and allocation of accommodation. Where a local authority has a lawful policy, and the policy has been implemented correctly, its decision in an individual case will be lawful (Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTRS 549; Alibkhiet v Brent LBC [2018] EWCA Civ 2724; [2019] HLR 15; Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] HLR 36).

Background facts of the case

Ms M applied to the local authority as homeless and a relief duty was accepted.

On 11 May 2021, Ms M was made a final accommodation offer of a 2-bedroom property in the neighbouring borough of Hounslow. Ms M had previously refused an offer of accommodation in the authority’s area because it was too small.

Local authority internal emails sent shortly before the offer was made referred to a 2-bedroom property in another neighbouring borough, Hillingdon, and a 2-bedroom property in Cricklewood which was considered to be very expensive.

Ms M raised concerns about the offer being too far from her workplace. She did not sign the necessary paperwork.

On 25 May 2021, the local authority informed Ms M that it considered she had refused the offer and that the relief duty had come to an end.  Ms M requested a review. The main ground for review was that Ms M had not refused the offer.

On 12 August 2021, the decision that the relief duty had come to an end was upheld on review. The review officer considered that Ms M did not fall to be prioritised for accommodation within its area under its temporary accommodation allocation policy.

Ms M appealed to the county court. The appeal was dismissed.

In the Court of Appeal in Moge v London Borough of Ealing [2023] EWCA Civ 464, Ms M raised the following:

• The local authority had failed to comply with its duty under s.208(1) because it had not demonstrated that its officers had carried out a search for suitable accommodation closer than the property offered.
• The local authority had only searched for private sector accommodation and did not search for suitable properties available under Part 6, Housing Act 1996. It was accepted during the hearing that an offer could not be made under Part 6 as Ms M had not made an application under Part 6. It was argued that the local authority should investigated whether housing association accommodation available under Part 6 could be made available under Part 7.

In the Court of Appeal, the local authority filed a respondent’s notice seeking to uphold the judge’s decision because it operated a temporary accommodation acquisition policy and it had been following that policy. The authority applied for permission to rely upon evidence confirming compliance with the policy which had not before the county court.

Court of Appeal judgment

The Court of Appeal gave the local authority permission to rely upon the new evidence. It would have been unfair not to grant permission when the focus of the appeal in the county court had been on other points and no inquiries were made by Ms M‘s solicitors as to what the local authority had done to comply with s.208(1).

• The totality of the evidence was sufficient to show that the local authority had complied with its acquisitions policy and s.208(1) (Snowden LJ at [121]-[130]).
• The evidence was sufficient to show that the authority had complied with s.208(1) and that the accommodation was the closest available accommodation.
• It would be unduly rigid and unfair to require the authority to explain why the 2-bedroom property in Hillingdon was not offered to Ms M (Males LJ at [163] and Thirlwall LJ at [165]).

If a person is offered accommodation in a neighbouring borough, some flexibility is appropriate. It should not matter that there is some other accommodation that is marginally closer (Males LJ at [145] and Thirlwall LJ at [165]).

To comply with s.208(1), an authority does not have to investigate the possibility of making bespoke arrangements with housing associations so that accommodation available under Part 6 can be offered under Part 7.

Genevieve Screeche-Powell and Clare Cullen are barristers at Field Court Chambers. They represented the local authority in the case of Moge v London Borough of Ealing.