Court of Appeal rejects challenges to out-of-area placements

06 Dec 2018

Housing, Local Government, Public Law and Judicial Review

The Court of Appeal has today considered two post-Nzolameso challenges and found that out-of-area placements by the City of Westminster and by Brent LBC in discharge of their homelessness functions had been lawful and in keeping with section 208(1) of the Housing Act 1996 without the need to search for accommodation on a number of days and/or provide reasons at the offer stage:

(1) So far as reasonably 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.


In both appeals, it had been accepted that the applicant was owed the full housing duty. In compliance with their published policies, the authorities made out-of-area final offers of private rented accommodation to the applicants. Ms Adam, who had applied to Westminster, accepted the offer in Sutton; Mr Alibkhiet, who had applied to Brent, refused the offer in Smethwick. Both sought a suitability review.

The arguments on appeal

On appeal, Ms Adam argued that where in-borough accommodation is not available on the day of proposed offer authorities are effectively required to search for accommodation over an undefined period so that they can be said to have done all that is “reasonably practicable”. Mr Alibkhiet argued that the authority had failed to explain why he had not been offered identified in-borough accommodation.

The judgment

Lewison LJ, in delivering the main judgment of the Court, began by referring to the “acute shortage of housing, especially affordable housing, in London” [1]. He then held that the principle that the courts should be slow to interfere with allocations schemes (R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] PTSR 632) applied to post-Nzolameso policies in recognition of the difficult balancing exercise authorities must carry out to give effect to their concurrent duties to individual homeless applicants [37]. He also held that “a court must be wary about imposing onerous duties on housing authorities“[38].

He then went on to draw out four key points:

(1) A housing authority is entitled to take account of its resources, the difficulty of procuring sufficient temporary accommodation, and the practicalities of securing that it is local [46(i)].

(2) If there is in-borough accommodation, it does not follow that the authority must offer it to a particular applicant [46(ii)].

(3) The decision in an individual case may depend on a post-Nzolameso policy that the authority has adopted. The policy (which should be publicly available) should explain the factors which will be taken into account in offering accommodation, in offering in-borough accommodation, and in making out-of-area placements[46(iii)-(iv)].

(4) Where an authority has a lawful policy which it implements correctly, its decision in an individual case will be lawful, and it will normally be sufficient as a means of explaining why a decision was taken [48]. Authorities will recall the guidance given in Nzolameso and the importance of maintaining and updating such policies.

The Court of Appeal ultimately found that there was no duty to inquire as to what suitable accommodation was available over a number of days before concluding that it was not reasonably practicable to secure in-borough accommodation. Further, it would be ample to refer to a post-Nzolameso policy to explain why a particular out-of-area offer had been made, and that reasons were not required in the original offer letter.

Andrew Lane and Riccardo Calzavara appeared for the City of Westminster and were instructed by Effie Igwe of the Bi-borough Legal Services.