London borough wins appeal over out-of-borough placement

Lord Justice Lewison condemned the case made against the council as “a prime example of the judicialisation of welfare services” and found Enfield did not breach its statutory duty or placement policy for applicant A.

A argued that Enfield failed to search for available accommodation closer to her former home and failed to comply with its statutory duty to notify Haringey, in whose area A was placed, within the statutory time limit.

The court heard A was the victim of domestic abuse by her ex-partner MB, who was later jailed for 20 months and made subject to a five years restraining order.

In August 2022 A applied to Enfield for homelessness assistance under Part 7 of the Housing Act 1996 and the council accepted it owed her the full housing duty under section 193 (2) of the Act.

Fear of violence from MB and his associates meant A did not wish to be accommodated in Enfield - though she wished to be in reasonable distance of her mother who still lived there - and the council offered her temporary accommodation in neighbouring Haringey.

She accepted this but requested a review of the accommodation’s suitability.

Solicitors Hodge Jones & Allen argued on her behalf that the accommodation was too small, placed her at risk by being too near to Enfield, had a negative effect on her mental health, was in disrepair and lacked free parking. The review concluded the accommodation was suitable.

A appealed to the county court, which HHJ Roberts allowed and quashed Enfield’s decision.

Lewison LJ said the first ground argued - that Enfield was in breach of its duty under section 208 of the Housing Act 1996 was ”plainly wrong”.

He said s208 imposes a duty to make an in-borough placement “so far as reasonably practicable”.

It had not been reasonably practicable to place A in Enfield, because she would be in danger and she had requested not to be placed in Enfield.

“This is therefore a case in which the duty under section 208 (1) was in fact discharged by an out of borough placement,” he said.

Even if the challenge were expanded to include a failure to comply with article 2 of the Homelessness (Suitability of Accommodation) Order 2012, it would still fail, Lewison LJ said, because the local authority's duty in an out of borough placement is to take account of "the distance of the accommodation from the district of the authority."

This meant the distance between the accommodation and the authority’s area, not the distance between the accommodation and the applicant's former home.

Lewison LJ said A had made express requests to be placed either in Hillingdon or in Broxbourne council areas.

“You do not need to be an expert geographer to know that Hillingdon is the westernmost London borough, separated from Enfield by Barnet and Harrow; and Broxbourne is not even in London,” Lewison LJ said.

“The fact that Ms A expressed a desire to remain in London but also specified an out of London location as one of her preferred locations seems to me to show that the precise linear distance between the accommodation in which she was placed, and Enfield was not of importance to her.”

The judge said it was suggested that Enfield failed to apply its placement policy because it did not search for accommodation as close as possible to where Ms A previously lived.

“But that is not what the policy says; for two reasons,” he said. “First, it says that out of borough accommodation will be ‘close’ to Enfield; not ‘as close as possible’. Second, the closeness referred to in the policy is closeness to Enfield, not closeness to an applicant's previous address.” The accommodation in Haringey satisfied both criteria.

Lewison LJ said: “I regret to say that I regard this challenge as an opportunistic technical point devoid of substance. It is a prime example of the judicialisation of welfare services, which has been consistently deprecated.”

He said Enfield committed no breach of statutory duty, and no breach of its placement policy and there was no legal flaw in the review decision.

Enfield was in breach of its duty to notify Haringey within the statutory time frame that it had placed Ms A there, but no prejudice had arisen from this.

Lewison LJ said: “If an applicant is offered out of borough accommodation which is suitable when the offer is made, and the applicant takes up that offer, I find it difficult to suppose that Parliament's intention can have been that the accommodation becomes unsuitable 14 days later simply because the placing authority has not notified the host authority in accordance with the statutory time limit.

“To allow the applicant to assert that the accommodation has become unsuitable for that reason would, indeed, be to give that applicant, by a windfall, power to upset what is otherwise a lawful decision.”

He concluded that Enfield’s appeal succeeded and Cobb and Snowden LJs agreed.

Mark Smulian