Court of Appeal: Permission to appeal can be granted so long as one ground of appeal satisfies second appeals test
Housing, Public Law and Judicial Review
The Court of Appeal has held that as long as one ground of appeal satisfies the second appeals test, permission to appeal may be granted in respect of any number of grounds that do not. Riccardo Calzavara, instructed by Suzanne Mitchell, appeared on behalf of Bexley LBC. The decision can be found here.
Background
Ms Zaman applied to Waltham Forest London Borough Council (LBC) for homelessness assistance. The authority made her a Private Rented Sector Offer (PRSO) of three-bedroom accommodation 160 miles from where she had been living. She refused that offer, and indicated that she would be willing to accept two-bedroom in-borough accommodation. The authority discharged its duty on the basis that on the day of the offer there had been no closer three-bedroom accommodation available. Her appeal to the County Court was dismissed.
Ms Uduezue applied to Bexley LBC for homelessness assistance. The authority made her a PRSO of three-bedroom accommodation 20 miles from where she had been living. She refused that offer, but said nothing at all about her willingness to accept two-bedroom in-borough accommodation. The authority discharged its duty on the basis that on the day of the offer there had been no closer three-bedroom accommodation available, and that nothing smaller would have been suitable. Her appeal to the County Court was dismissed.
Both applicants obtained permission to pursue a second appeal to the Court of Appeal. Ms Zaman accepted that there was no other three-bedroom accommodation available on the day of the offer, but asserted that the authority had failed to demonstrate that it could not obtain closer accommodation. The Court of Appeal held that where an out-of-area offer is made it is incumbent on the authority to try to accommodate as close as possible to its area: [48]. Ms Zaman’s complaint was made out, and her appeal was allowed: [52].
Ms Uduezue obtained permission to advance three grounds of appeal:
- did the authority wrongly fail to consider offering two-bedroom accommodation,
- did the authority properly assess the impact on her children,
- did the offer satisfy the technical requirements of a PRSO?
None of those grounds found favour. Ms Uduezue had never suggested that she would be content with two-bedroom accommodation; in any event, the authority had concluded that only three-bedroom accommodation would be suitable: [59], [63]. It was unsurprising that the reviewer did not think it necessary to conduct further inquiries in relation to the children: [68]. There was no merit in the suggestion that it was necessary to identify the private landlord who was offering the tenancy underlying the PRSO: [72].
Shortly before the hearing of the appeal Ms Uduezue sought permission to advance a further ground, arising from the decision in Norton v Haringey LBC [2022] PTSR 1802, CA. In particular, it was said that the authority’s failure to inform Ms Uduezue of the implications of s.195A(2) Housing Act 1996 – which was accepted – meant that the authority’s duty had not been discharged. The authority argued that in order to obtain permission to appeal Ms Uduezue had to – and could not – satisfy the second appeals test, and that her failure to raise the point below had robbed the authority of the chance to argue that relief should in any event be refused as a matter of discretion.
The result
The Court of Appeal held that so long as one of the grounds of appeal satisfies the second appeals test, permission may be granted in respect of any number of grounds that do not: [82]. It also held that the County Court would have had no discretion to refuse to grant relief: [88]. Permission to appeal was granted and, the authority not advancing a positive case on the substance of the new ground, the appeal was allowed: [91].
