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Judge finds decision by London borough to accommodate disabled man in Wolverhampton unlawful

Central London County Court has found that a change to the wording of the Homelessness Code of Guidance did not affect a council’s need to consider whether alternative accommodation closer to its area was available to an applicant.

In S v London Borough of Waltham Forest HHJ Saunders found the council’s decision unlawful on a number of grounds, a commentary by Garden Court Chambers has said.

It said the judge held the council should have considered alternative accommodation applying Waltham Forest LBC v Saleh [2020]

HHJ Saunders rejected the council’s argument that Saleh was no longer good law because it had been based on the former wording of paragraph 17.48 of the code.

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He said: “In my view Saleh is quite clear – and it is not affected by the change in the Homelessness Code of Guidance.”

The wording concerned was not material to the reasoning in that case, the judge noted: “The crucial requirement of the local authority is to consider the accommodation at the date of the review, and they fell into error in not doing so – irrespective of the change in the Homelessness Code of Guidance.”

Garden Court barrister Justine Compton said: “HHJ Saunders’ reasons were in line with those of HHJ Roberts in Abdi v LB Waltham Forest.

“Whilst not binding, two decisions holding that Saleh remains good law is certainly persuasive.”

She said the court held Waltham Forest’s decision that S should be accommodated in Wolverhampton was unlawful because the review officer failed to explain how S’s extensive support needs would be met given his significant disability, and had concluded that the S’s network of friends and family could continue irrespective of a move to Wolverhampton.

Ms Compton said: “The decision fails to appreciate that he requires assistance for his disability on a day-to-day basis. It would be impossible for any family or friends to maintain that level of support at such a distance. This is a more than three hour trip by train, family members and friends only coming occasionally and the cost would be prohibitive.”

The review officer also concluded S should have adapted to his surroundings six months after he moved there.

But the officer had no expertise in the disability concerned and sought no advice.

She also rejected with no evidential basis S’s evidence that he was having profound problems in carrying out day-to-day activities.

HHJ Saunders concluded: “My overall view, having considered the reviewing officer’s decision carefully, is that, whilst there has been some attempt to deal with the issues raised,  there appears to have been a failure to properly appreciate and investigate the consequences of his ... significant disability.”

Following the Saleh case the Court of Appeal last year ruled 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.

Waltham Forest has been contacted for comment.

Mark Smulian

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