Nzolameso v City of Westminster [2014] EWCA Civ 1383

Case No B2/2013/3733[2014] EWCA Civ 1383
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Hornby
3CL40062
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 22 nd October 2014
Before
LORD JUSTICE MOORE-BICK(Vice-President of the Court of Appeal, Civil Division)LADY JUSTICE BLACKLORD JUSTICE VOS
Between
TITINA NZOLAMESOAppellantCITY OF WESTMINSTERRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Jan Luba Q.C. and Mr. Lindsay Johnson (instructed by Hodge Jones & Allen) for appellantMr. Ian Peacock (instructed by City of Westminster Legal Services) for respondentHearing Hearing date : 29 th September 2014
JudgmentLord Justice Moore-Bick :Introduction
[1]This appeal raises some interesting and important questions concerning the powers of local housing authorities to provide accommodation outside their own districts for those to whom they owe a housing duty. Until November 2012 the appellant, Ms. Nzolameso, lived in a four bedroom house in Westminster, the rent for which was covered by housing benefit in the form of local housing allowance. Following the reduction in 2012 of the amount of housing benefit, Ms. Nzolameso became unable to afford the rent on her existing property and as a result she and her five children became homeless. The respondent, the City of Westminster (“Westminster”), accepted that it owed her the main housing duty under section 193 of the Housing Act 1996 (“the Act”) and offered her temporary accommodation in the form of a five bedroom house in Bletchley, near Milton Keynes. Ms Nzolameso refused that offer. She had lived in Westminster for over four years and had many friends who provided her with emotional and practical support, in particular with looking after her children. She said that the house in Bletchley was too far from her children’s schools and that she did not know anyone in the area who would give her the same support as her friends in Westminster. As a result of her rejection of the offer of what it considered to be a suitable property, Westminster decided that it had discharged its duty towards Ms Nzolameso and was no longer under a duty to make accommodation available to her.[2]Ms Nzolameso asked for a review both of the decision that the house at Bletchley was suitable for her and of the decision that Westminster had discharged its duty to provide her with accommodation. A review was carried out, but the reviewing officer upheld both decisions. Ms Nzolameso appealed against those decisions under section 204 of the Act and thus the matter came before His Honour Judge Hornby in the Central London County Court. The judge expressed a good deal of sympathy for Ms Nzolameso, but he upheld the decision of the reviewing officer and dismissed the appeal. This is her appeal against that decision. The legislative background[3]Mr. Luba Q.C. for Ms Nzolameso placed a good deal of weight on the legislative background and it is therefore necessary to refer to some of it in detail. The following provisions of the Act are of particular relevance: “193.— Duty to persons with priority need who are not homeless intentionally(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. . . . (5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section. . . . 198.—Referral of case to another local housing authority (1) Ifthe local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion. (2) The conditions for referral of the case to another authority are met if— (a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made, (b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and (c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district. 202.— Right to request review of decision (1) An applicant has the right to request a review of— . . . (b) any decision of a local housing authority as to what duty (if any) is owed to him under [sections 193 and 196 ], . . . (f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) . . . . . . 206.— Dischargeof functions by local housing authorities (1) Alocal housing authority may discharge their housing functions under this Part only in the following ways— (a) bysecuring that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, . . . 208.— Dischargeof functions: out-of-area placements (1) So far asreasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.” . . . (a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made, (b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and (c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district. . . . (b) any decision of a local housing authority as to what duty (if any) is owed to him under [sections 193 and 196 ], . . . (f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) . . . . . . (a) bysecuring that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, . . .[4]Section 182 of the Act requires local housing authorities, in the exercise of their functions relating to homelessness, to have regard to such guidance as may be given by the Secretary of State from time to time. The relevant guidance for present purposes is contained in the Homelessness Code of Guidance for Local Authorities (2006) (“the Code”). Paragraphs 16.7 to 16.9 of the Code provide guidance on compliance with the duty imposed by section 208 of the Act. They provide that housing authorities should aim to provide accommodation within their own districts wherever possible, unless there are clear benefits to a particular applicant of being accommodated elsewhere, and that those who have a need to maintain links with essential services should be given priority. The Code also recognises in paragraph 17.41 that the location of accommodation will have a bearing on its suitability for the different members of the household, all of whose interests have to be taken into account, and that housing authorities should secure accommodation as close as possible to where applicants were previously living.[5]Supplementary Guidance was issued in 2012 in relation to compliance with the requirements of the Homelessness (Suitability of Accommodation) (England) Order 2012 (“the Supplementary Guidance”). Paragraph 48 of that guidance provides as follows:
“Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.”
The reviewing officer’s decision[6]In her decision letter the reviewing officer confirmed that she had considered all the relevant information, including the reasons given by Ms Nzolameso for rejecting the property, information from her GP and the information contained in the housing file. She noted that the house in Bletchley was suitable for seven people and therefore large enough to accommodate the whole of Ms Nzolameso’s family. She referred to Ms Nzolameso’s medical condition and gave detailed consideration to the support she was currently receiving from her close friends, especially in relation to looking after the children. She concluded that it would have been possible for the children to move schools and for Ms Nzolameso herself to obtain medical treatment and care from a doctor in Bletchley. She considered that Ms Nzolameso could maintain contact with her friends in Westminster without too much difficulty and that she could make new friends who would provide her with the emotional and practical support she needed. She then said:
“As you are aware, Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council’s Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.”
[7]Before the judge, counsel for Ms Nzolameso (who did not appear on the appeal) submitted that Westminster had failed to examine all the housing that was, or might be, available to see whether it could provide accommodation either within its own district or somewhere closer than Bletchley and that the decision to offer accommodation there was unreasonable in the Wednesbury sense. The judge rejected both arguments. He held that, although the decision letter contained no express reference to the availability of accommodation nearer to Westminster than Bletchley, the team must have had regard to all the stock available to it before allocating to Ms Nzolameso a property that was suitable to her needs.[8]Before us Mr. Luba Q.C. developed submissions similar to those that had been advanced below. He submitted that the effect of section 193 of the Act was to impose on the local housing authority a duty of a personal nature towards one who fell within its scope (as it is accepted Ms Nzolameso did). Accordingly, at the date on which an offer of temporary accommodation was made, section 208, read in the light of paragraph 48 of the Supplementary Guidance, imposed a duty on Westminster to offer her, in so far as reasonably practicable, accommodation within its own district or as close as reasonably practicable to it. That required the Temporary Lettings team to examine the accommodation available to it on that day and to offer to Ms Nzolameso any suitable property that was then available in Westminster, or, if no suitable property was or could be made available in Westminster itself, the nearest suitable property available outside its own district. He submitted that in discharging that duty Westminster was bound to consider not only the housing available within its own stock but also housing available to it from other sources, including the open market. In his submission, the expression “insofar as reasonably practicable” in section 208 had to be read in the context of the personal duty owed to the applicant; it did not allow the authority to take into account broader considerations, such as financial pressures, administrative difficulties or the imminent likelihood of a need to provide accommodation to others whose particular circumstances might give rise to a more pressing need for them to remain in or closer to its own district. The error in the reviewing officer’s decision was to ask the wrong question. Instead of asking herself whether it was reasonably practicable for Westminster to offer Ms Nzolameso accommodation within its own district, she had asked herself whether it was reasonable in all the circumstances for it to have offered her accommodation outside its own district.[9]Mr. Ian Peacock for Westminster pointed out that section 202 of the Act does not create a general right of review but only a right to challenge specific kinds of decision, in this case the decisions that the accommodation in Bletchley was suitable and that Ms Nzolameso’s rejection of it had discharged Westminster’s duty to her. Section 208 was relevant only to the extent that compliance with it had a bearing on whether the property in Bletchley was suitable to her needs. He submitted that the resources, both human and financial, available to Westminster did not enable it to carry out the kind of search that Mr. Luba described for the benefit of each person to whom it owed a duty under section 193. He submitted that the words “in so far as reasonably practicable” in section 208(1) were apt to encompass a much broader range of circumstances than the mere immediate availability of a suitable property at the time of the offer. The factors to which the reviewing officer had referred in the passage in her decision letter cited earlier were factors which it was proper to take into account when deciding whether it was reasonably practicable for Westminster to offer Ms Nzolameso accommodation in, or nearer to, its own area.[10]It is, of course, correct, as Mr. Luba pointed out, that section 198 of the Act enables a local housing authority to refer to another authority an applicant who has a closer connection to it, but that does not, in my view, have any bearing on the meaning or effect of section 208. If an applicant is referred to another authority under section 198, it is that other authority which will incur any duty under section 193 and will become responsible for making accommodation available. Moreover, it will be obliged to do so from its own resources. The fact that it is possible for a limited class of homeless persons to be transferred to other authorities in that way is not an indication that local housing authorities should not provide accommodation outside their own districts to homeless persons when circumstances make that necessary. In my view it is too simplistic to say, as Mr. Luba did, that the purpose of section 208 is to prevent local housing authorities from exporting homeless people to other areas. It is true that, if a local housing authority provides accommodation outside its own area, one consequence will be to impose on another local authority additional costs in relation to the provision of services and that may be one of the reasons why section 208 was enacted: see R (Sacupima and others) v Newham London Borough Council [2001] 1 W.L.R. 563 at page 575H per Latham L.J. I am inclined to think that another purpose was to ensure that homeless people are provided with accommodation in the places where they have previously been living and have established contacts. However, Parliament has recognised that many housing authorities face severe practical difficulties in providing accommodation within their own districts. Accordingly, although the section reflects a desire to ensure that the homeless are accommodated within the local authority area in which they have been living, it recognises by its very terms that authorities cannot always achieve that objective. The question raised by this appeal is what factors can properly be taken into consideration by a local housing authority when deciding whether it is reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that, as in the present case, the accommodation may be of no more than a temporary nature. Section 208[11]In R (Sacupima and others) v Newham London Borough Council the council as the local housing authority had offered the applicants temporary accommodation outside its own area which they did not consider suitable to their needs. The council maintained that the demand for council accommodation far exceeded supply and the needs of many other homeless people were greater than those of the applicants. A limited amount of accommodation was available on a temporary basis. As a result the council felt constrained to use bed and breakfast accommodation wherever it could find it, in the case of one of the applicants in Great Yarmouth. It submitted that location was not a relevant consideration for the purposes of determining whether accommodation was suitable within the meaning of section 206. This court rejected that submission and in doing so rejected the suggestion that the council could derive assistance from section 208, the purpose of which was said to be “to ensure so far as possible that housing authorities do not simply decant homeless persons into areas for which other authorities are responsible.” Beyond that, however, the decision provides little assistance in relation to the issues raised by this appeal.[12]In R (Calgin) v Enfield London Borough Council [2005] EWHC 1716 (Admin), [2006] H.L.R. 4 the local housing authority had adopted a policy under which homeless people were offered accommodation outside its own district because the demand was such that, coupled with the acute shortage of affordable housing, it was not reasonably practicable in many instances to provide accommodation locally. The claimant, who had been offered accommodation in Birmingham, challenged the lawfulness of the policy; the council relied on section 208 and the resulting dispute revolved around the meaning of the expression “so far as reasonably practicable”. Counsel for Mr. Calgin accepted that cost could not be an irrelevant or improper consideration and Elias J. (as he then was) said in paragraphs 29 and 30:
“29. Furthermore, it must surely be assumed that Parliament would have been well aware of the intensive pressures on housing stock and, whilst favouring in borough accommodation, would not have sought to impose undue or unnecessarily onerous financial burdens on local authorities who are taking a practical approach to the problem of matching the need for a range of suitable accommodation with a limited budget. 30. . . . In a practical world the question of available resources must be as relevant to the discharge of the duty under s.208 as it is to the duty under s.206.”
[13]The judge recognised that there had to be a proper evidential basis for determining that the provision of local accommodation was not reasonably practicable, but held in paragraph 33 that:
“33. Given the financial constraints on the Council, it was entitled to conclude that it would not be reasonably practicable to house these persons within the borough of Enfield.”
[14]In relation to the application of the policy

the judge said in paragraph 34:

“34. . . . the criteria could specify that normally suitable accommodation which is available in the area should be used, unless it is not reasonably practicable to do so. And in my opinion it may not be reasonably practicable even where cost effective accommodation is available . . . It seems to me, for example, that an authority may be justified in withholding accommodation from someone with no or very limited links with the area in the confident expectation that someone with much closer links, and for whom out of borough accommodation would not be suitable, will within a very short time be seeking accommodation also. The housing authority must anticipate likely demand, and I did not understand Mr Knafler to dispute this.”
[15]Mr. Peacock relied on these passages as supporting the proposition that local housing authorities are entitled to take into account a wide range of factors, including financial pressures, staff resources, the overall requirement for housing, the relative needs of different applicants and the pattern of demand, when deciding whether it is reasonably practicable to provide accommodation to particular applicants within their own districts.[16]Mr. Luba submitted that the decision of the reviewing officer in this case was wrong for several reasons: she had considered the position from a broad perspective instead of focusing on the position of Ms Nzolameso and asking whether there was any accommodation within Westminster that was suitable to her needs; she had examined the position as it was at the date of her decision, rather than as it had been at the date of the original decision; she had abdicated responsibility for deciding what accommodation should be offered to Ms Nzolameso, adopting the decision of the Temporary Lettings team rather than taking on the burden herself; she had endorsed the approach of simply asking what accommodation was suitable for Ms Nzolameso’s household, instead of asking whether it was reasonably practicable to accommodate her within Westminster; and she had failed to direct her mind to Ms Nzolameso’s particular circumstances.[17]Mr. Peacock was clearly right in saying that section 202 of the Act does not give an applicant a right to challenge by way of review a local housing authority’s compliance with section 208(1) as such. However, he was also right, in my view, to recognise that, since the authority must comply with its obligation under that section, a failure to do so, leading to the applicant’s being offered accommodation outside the district, is likely to have a bearing on whether that accommodation is suitable. In the present case the reviewing officer decided that the council had complied with section 208 and that the accommodation was not unsuitable by virtue of its location. Although Mr. Luba made other criticisms of the reviewing officer’s decision, to which I have referred and to which I shall in due course return, the central question in this case is whether Westminster was entitled to have regard to the shortage of housing within its own area, the demands likely to be made upon it and the varying needs of those to whom it owed a duty to provide accommodation when reaching its decision.[18]Although I accept that section 193 imposes on a local housing authority a personal duty to a homeless person who falls within it, I do not think it follows that it is obliged to consider only those factors relating to the particular applicant when deciding whether it is reasonably practicable to make an offer of accommodation within its own district. Mr. Luba’s submission, if correct, would in my view put local housing authorities in an impossible position and would impose on them obligations to which Parliament cannot have intended to subject them. It would require them to make available any suitable accommodation which happened to be available within their own districts at the time they were called upon to make a decision on an application, without regard to how the needs of the applicant’s household compared to those of others to whom they already owed a similar duty, or to the circumstances of those with a greater need to remain within their districts from whom they could expect to receive similar applications in the near future. Read in conjunction with paragraph 48 of the Supplementary Guidance, it would require the housing department (in this case the Temporary Lettings team) to scour not only the authority’s own district but also the districts of all neighbouring authorities in an ever widening circle in an attempt to find accommodation from any source that might be suitable to the applicant’s needs. That would impose an unreasonable and disproportionate burden on councils, which do not have the human or financial resources to undertake a search of that kind for every applicant. What is reasonably practicable in any given case is a matter for the housing authority itself to decide, provided its decision is not Wednesbury unreasonable. In my view, when considering whether it is reasonably practicable to provide an applicant with suitable accommodation in its own district, a housing authority is entitled to have regard to all the factors that have a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature.[19]Mr. Luba submitted, however, that there must be a proper evidential basis for a housing authority decision that it is not reasonably practicable to offer an applicant accommodation in its own district. In support of that submission he drew our attention to the decisions in R (Cafun) v The London Borough of Bromley (17th October 2000) (unreported), R (Yumsak) v Enfield London Borough Council [2002] EWHC 280, [2003] H.L.R. 1, Calgin (sup.) and Sevine v Enfield London Borough Council (6th November 2008), a decision of the Central London County Court, all of which refer in one way or another to the need for there to be an evidential basis for a decision of that kind. In the present case, he submitted, there was no evidential basis on which the reviewing officer could properly reach the conclusion that it was not reasonably practicable for Westminster to offer Ms Nzolameso accommodation within its own district.[20]I accept that the court should be astute to ensure that local housing authorities give proper consideration to their duty under section 208 and do not merely apply policies which lead to accommodation being provided outside their own districts in a routine and unthinking manner. On the other hand, many authorities, of which Westminster is one, are under great pressure to discharge their statutory obligations and should not be prevented from making sensible use in an orderly way of the housing stock available to them, whether within or outside their own districts.[21]Mr. Luba submitted that the paragraph in the reviewing officer’s decision quoted earlier does not provide a sufficient basis for her finding that it was not reasonably practicable for Westminster to accommodate Ms Nzolameso within its own district. However, the decision must be read as a whole and it is clear that the reviewing officer had available to her the whole of the housing file. She must, in my view, also be taken to have been aware of the resources available to the council and the pressures on them. It is not necessary in a decision letter of this kind for the reviewing officer to describe in detail what those resources and pressures are. If, as I think, Westminster was entitled to take a broad range of factors into account in deciding whether it was reasonably practicable to provide accommodation to Ms Nzolameso within its own district, it was sufficient for the reviewing officer to describe the circumstances which led to her conclusion in general terms. I am therefore not persuaded that her decision was irrational in the sense that it lacked an evidential basis.[22]Nor do I think that there is any substance in Mr. Luba’s other criticisms of the reviewing officer’s decision. There is no reason to think that pressures on Westminster’s resources in May 2013 were significantly different from those it faced in January that year. Since, for the reasons I have given, I am satisfied that the reviewing officer was entitled to have regard to a wide range of factors when reaching her decision, she was entitled to refer to the current position in so far as it reflected the position that had existed when the offer was made. For similar reasons I am unable to accept the submission that she abdicated responsibility to the Temporary Lettings team, in the sense, as I understand it, that she endorsed their decision without re-examining Ms Nzolameso’s needs and the resources available to meet them. She must be taken to have been aware of the resources available to the housing department and the approach which it took to allocating accommodation to homeless applicants. She considered Ms Nzolameso’s circumstances and needs in some detail and on that basis reached her own conclusion about the suitability of the accommodation that had been offered to her.[23]For these reasons I do not think that Westminster was in breach of its obligations under section 208 of the Act. Supplementary Guidance: paragraph 48[24]As an alternative to his argument based on section 208 Mr. Luba sought to rely on paragraph 48 of the Supplementary Guidance. He submitted that, if Westminster could not offer Ms Nzolameso accommodation within its own district, in order to be satisfied that any accommodation offered to her elsewhere was suitable for her needs it was necessary for it to have looked for accommodation nearer to its own district before offering her a house in Bletchley. However, there was no indication in the reviewing officer’s decision that she had been aware of paragraph 48 or that she had taken it into account. Accordingly, the decision that the accommodation offered to Ms Nzolameso in Bletchley was suitable could not be supported.[25]In my view this argument must also be rejected. The guidance produced by the Secretary of State is lengthy and detailed. Paragraph 48 of the Supplementary Guidance relates to one aspect of the housing authority’s duty under section 208(1) and the reviewing officer cannot be criticised for having failed to make express reference to it. In my view there is no basis for inferring that she did not have it in mind or that she was unaware of the desirability of accommodating Ms Nzolameso as close to Westminster as was reasonably practicable. She examined Ms Nzolameso’s circumstances in detail and considered the extent to which she needed to remain close to the place where she had previously been living. She described the pressures on Westminster and explained that accommodation was offered on the basis of the applicant’s circumstances. In my view that was sufficient; it was not necessary for her to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to Ms Nzolameso.[26]For these reasons I agree with the judge that the reviewing officer did not fail to take into account the requirements of section 208 or the guidance given by the Secretary of State in relation to it when reaching her decision that the accommodation at Bletchley was suitable for Ms Nzolameso, despite its location, and that her decision was not unlawful. I would therefore dismiss the appeal. Lady Justice Black :[27]I agree.

Lord Justice Vos :

[28]I also agree.

Cited in 4 later judgments