The Court of Appeal has reached opposite findings in two cases it heard together on council housing allocation policies.
In Hajjaj v City of Westminster  EWCA Civ 1688 Lord Justice Bean delivered judgments in the cases of Ibrahim Hajjaj against the City of Westminster and Morium Akhter versus the London Borough of Waltham Forest.
Both concerned the use of the private rented sector by local housing authorities in ceasing their duty under s.193(2) of the Housing Act 1996.
This power to unilaterally bring the duty to an end by offering private accommodation was introduced by the Localism Act 2011.
Bean LJ said the question common to both cases was in what circumstances accommodation should be regarded as unsuitable.
The Akhter case also raised whether a local housing authority may lawfully discharge its duty under s208 with accommodation located out of its area in the absence of a relevant procurement policy.
Mr Hajjaj was offered a home owned by the charity St Mungo’s in Dartford and when he refused this, and following an unsuccessful review, was warned he could face eviction from the hotel in which he had been placed.
Ms Akhter was offered a home in Harlow that she considered unsuitable but Waltham Forest maintained it was suitable when it undertook a review.
Both Mr Hajjaj and Ms Akther had their appeals against these decisions dismissed by the county court.
Arnold LJ granted permission to appeal to both and said: “I consider that the ground of appeal has a real prospect of success and that it raises an important point of principle or practice regarding the operation of the private rented sector offer scheme used by local authorities to discharge their duties under Part 7 of the Housing Act 1996.”
On Ms Akhter’s procurement ground he was “more doubtful, but on balance consider that permission should also be granted on this ground”.
Bean LJ said that for a local authority to decide a property was suitable it was “not enough to take the view that because the proposed landlord is established and respectable, therefore all properties owned by that landlord should be assumed to be in a reasonable physical condition unless a ‘red flag’ is raised either by the applicant or by some other adverse information”.
It was not for an applicant to raise a ‘red flag’ and an authority must be satisfied about a property “on the basis of evidence rather than assumptions”.
He noted that in Ms Akhter’s case landlord Mears had inspected the property, and found that apart from some minor issues it was fit for occupation the following week.
In Mr Hajjaj's case, the statement in Westminster’s offer letter that the accommodation was in a reasonable physical condition “was simply based on assumptions”.
Bean LJ said: “The contrast between these two appeals on the facts is very striking. In Mr Hajjaj's case Westminster simply assumed that because St Mungo's are good landlords the property must be suitable. They had information as to its location and size, but nothing about the physical condition of the property, let alone other matters such as fire safety precautions or an energy performance certificate. They did not obtain any of the evidence about the property of the kind available to the decision-makers at Waltham Forest in Ms Akhter's case.”
He said that if housing authorities do not have such evidence and do not inspect the property “there is in my view a serious risk that the mischief identified in the Explanatory Memorandum to the 2012 Order will not be cured.
“I do not accept that this represents a judicialisation of housing allocation policy. The reliance on assumptions is such a departure from what the Act and the 2012 Order require that the decision in Mr Hajjaj's case cannot be allowed to stand.”
He said though that Ms Akhter’s position was different as there was ample evidence of the property’s suitable condition.
On the procurement policy issue, Bean LJ said no previous decision of any court required a procurement policy as well as one for allocations and, “I can see no reason why it should be necessary”.
Lord Justice Nugee and Mrs Justice Falk agreed.