Council loses homelessness appeal over application of 'Mohammed Test'

The London Borough of Waltham Forest failed to properly consider one of the limbs of the ‘Mohammed test’ in a homelessness case appeal, a judge has found.

In SN v LB Waltham Forest the case at Central London County Court, in which Justine Compton of Garden Court Chambers represented the appellant, arose from SN having been found intentionally homeless for a second time and having filed an appeal pursuant to s.204 of the Housing Act 1996.

SN suffers from high blood pressure and has two young children, one of whom suffers chronic constipation and daily vomiting.

In its three successive decisions Waltham Forest refused to accommodate SN pending appeal.

The focus of the case was on whether the council had properly considered limb 3 of the Mohammed test, concerning the applicant’s personal circumstances and the consequences of a refusal to accommodate.

The council argued firstly that the merits part of the balancing act (‘limb 1’) was the overriding consideration and without merits other factors were unlikely to outweigh an unmeritorious case.

It also argued that it had recorded the personal circumstances and considered the medical evidence adequately.

According to Garden Court Chambers, HHJ Hand QC rejected these arguments and found there was no hierarchy in the Mohammed test, and so personal circumstances were capable of tipping the balance in an appellant’s favour regardless of the merits.

He said local authorities rarely accepted an appeal had merit and therefore the position urged upon him by Waltham Forest would mean that most people pursuing an appeal would fall at the first ‘Mohammed’ hurdle, which could not be right.

The decisions made had been unlawful as the consequences of not having been properly considered despite the facts having been set out and reference being made to the evidence.

A reviewing officer had to properly consider what the real effect of its decision on an appellant with their particular circumstances would be, the judge said.

He made a mandatory order under s.204(4)(6) as there were issues of credibility in the main appeal, and where the appellant may have to deal with her children going into care – which would affect her ability to cope, interfere with her benefits and impact on her public funding certificate – the test was met.

Waltham Forest has been contacted for comment.

Mark Smulian