ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Saggerson
B e f o r e :
LORD JUSTICE HENDERSON
LADY JUSTICE ASPLIN
|- and -|
|LONDON BOROUGH OF BRENT||Appellant|
|- and –|
|CITY OF WESTMINSTER||Respondent|
Martin Westgate QC and Dominic Preston (instructed by Hodge Jones & Allen Solicitors Ltd) for the Respondent in B5/2017/3090
Jonathan Manning and Richard Granby (instructed by Oliver Fisher Solicitors) for the Appellant in B5/2018/1286
Andrew Lane and Riccardo Calzavara (instructed by City of Westminster Council) for the Respondent in B5/2018/1286
Hearing dates: 27th November 2018
Crown Copyright ©
Lord Justice Lewison:
The statutory framework
1996. That duty is a duty to "secure that accommodation is available for occupation by the applicant". The duty may be discharged if the housing authority makes an offer of accommodation which an applicant refuses. The housing authority may discharge their duty only in certain specified ways, one of which is by securing that an applicant obtains suitable accommodation from a third party: section 206 (1). In addition, an authority must not make a final offer unless they are satisfied that "the accommodation is suitable for the applicant": section 193 (7F).
"(c) the tenancy being offered is a fixed term tenancy … for a period of at least 12 months."
"If within two years beginning with the date on which an applicant accepts an offer under section 193(7AA) (private rented sector offer), the applicant re-applies for accommodation, or for assistance in obtaining accommodation, and the local housing authority—
(a) is satisfied that the applicant is homeless and eligible for assistance, and
(b) is not satisfied that the applicant became homeless intentionally, the duty under section 193(2) applies regardless of whether the applicant has a priority need."
"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 determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including—
(a) where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority;
(b) the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person's household;
(c) the proximity and accessibility of the accommodation to medical facilities and other support which—
(i) are currently used by or provided to the person or members of the person's household; and
(ii) are essential to the well-being of the person or members of the person's household; and
(d) the proximity and accessibility of the accommodation to local services, amenities and transport."
"48. 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.
49. Generally where possible authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support."
Adam v Westminster City Council
"2.1 In accordance with legislation and statutory guidance, the council seeks to accommodate homeless households in Westminster as far as reasonably practicable. However, as there is a serious shortfall of accommodation in-borough to meet housing need, it will not be reasonably practicable to provide accommodation within Westminster to every household and there will be an increasing need to use accommodation that may be at some distance from the borough.
2.2 Because of the limited supply of accommodation in Band 1 and Band 2 (defined below), accommodation within these bands will be allocated to homeless households with a compelling need for it."
Adam's situation. The housing officer concerned noted that Ms Adam was number 696 on the housing list and was approximately 15 years away from an offer of social housing. He noted that there was one suitable unit of accommodation within the borough; but that it was earmarked for a household higher up the priority list. He also considered the commuting distance between the offered accommodation and the children's school; and considered that it would be unreasonable. However, he noted that there were local schools to which the children could transfer. He went on to consider Ms Adam's medical needs; what support network she had locally; whether anyone in the household was receiving support from social services; and the amenities in the vicinity of the offered accommodation. He concluded that there was no impediment to the offer of accommodation in Worcester Park. Ms Adam requested a review of that decision. Her solicitors wrote a nine page letter making representations on her behalf in support of the review. What they requested was a review of the suitability of the offered accommodation. The main point raised was the length of the journey to school that the children would need to make if they stayed at King Solomon Academy; and the disruption to their education that would be caused if they were to change schools. It also mentioned Ms Adam's health problems, and affordability.
accommodation, such as to discharge Westminster's duties under the 1996 Act. It is that decision that Ms Adam challenges. There are two surviving grounds of challenge. The first is that Westminster did not make sufficient efforts to comply with its duty to house Ms Adam within the borough of Westminster if reasonably practicable. The second is that Westminster did not give adequate reasons for its decision.
" I have taken into account s. 208 (1) of the Housing Act 1996, the Homelessness (Suitability of Accommodation) England Order 2012 and statutory guidance. In line with the above, we are obliged to accommodate applicants in the borough if possible or as near to the borough as possible. Unfortunately, it is not reasonably practicable to accommodate all applicants in or close to Westminster. I have attached our Temporary Accommodation FAQ sheet, which explains our approach to procuring and allocating temporary accommodation. This sheet also tells you where you can find information about Westminster's Housing Allocation Scheme, which explains how we prioritise households for temporary accommodation within Westminster.
 As part of my enquiries I have discussed Ms Adam's case with our Private Sector Rents Team to determine what properties were available within the borough at the time we were considering her for an offer. I have been advised that there were no other available three bedroom properties in or outside of Westminster. They also confirmed that the physical layout of the property is suitable taking into account any medical issues in the household.
In summary, and in the light of all the above factors, I cannot accept as justifiable, your reasons for considering the accommodation offered unsuitable."
Alibkhiet v London Borough of Brent
Mr Alibkhiet is not within any of these categories. However, the policy also states that "any other special circumstances will be taken into account". Paragraph 4.2 of that policy states that there will be a general presumption that placements outside of London will be used to discharge housing duties "where suitable, affordable accommodation is not available locally". Brent also maintains a policy on discharging its statutory duty by a placement in the private rented sector. That policy states that where an applicant is owed the full housing duty the presumption will be that Brent will discharge its duty "by arranging for a private landlord to make an offer of an assured shorthold tenancy for a period of at least 12 months." However, the policy goes on to say that it is not a "blanket application" of the new power, but that a decision will be taken after a full consideration of a household's individual circumstances. Section 3 of the policy repeats that the duty will remain until Brent arranges for a private sector landlord to offer an assured shorthold tenancy "for a period of at least 12 months". Paragraph 4.2 of that policy also states that there will be a general presumption that placements outside of London will be used to discharge housing duties "where suitable, affordable accommodation is not available locally".
"Please note that this suitable offer of private accommodation will discharge our duty to you whether you accept or refuse the property and that you will receive only this one offer of suitable accommodation."
" However, there is a severe shortage of affordable temporary and long term housing within the Brent area as well as in London and the South East generally.
 The demand for social housing in Brent significantly outweighs supply…. The average time it takes a family to secure a 2 bed unit under our choice based lettings scheme for someone in band C is 8 to 9 years. …
 There is a chronic shortage of affordable, private rented sector accommodation within the Brent area but also more widely within London and the South East. …
 Because market rents are so much higher than LHA [i.e. Local Housing Allowance] levels, this means that Brent Council is unable effectively to compete with other potential tenants for the limited supply of private sector accommodation…. At the end of December 2015 Brent Council was accommodating 2,942 households in temporary accommodation. …
 For the above reasons, it is not possible for Brent Council to secure accommodation within or near to Brent for the majority of accepted homeless households. It therefore has to prioritise the very limited supply of accommodation within or near to borough for those most in need of it. This is done by applying the council's Temporary Accommodation Placement Policy. This is regularly reviewed to ensure that all the affordable housing available to the council from time to time is targeted as those who need it most. It was last updated in July 2015 …
 Under paragraph 4.3.1 of the placement policy applicants are prioritised for an offer within Greater London if they have been continuously employed within Greater London for a period of six months and for 24 hours or more a week. By your own admission and through our enquiries we have confirmed that you have been in receipt of jobseeker's allowance since
September 2016 when you ceased your employment as a part
time restaurant cleaner and had been in receipt of approximately £450 per month in the form of wages.
 The fact that your case did not come within the criteria set for a placement within-borough or within Greater London means that, within the constraints that we operate in, it was not possible to secure housing for you and your family within those areas which would have been close to where you were previously living, while also being fair to other applicant households with far higher levels of need to be housed in those areas. The accommodation that was offered to you was the nearest that Brent Council could find to Greater London that was affordable for you. …
 Unfortunately, the experience of the Council's housing needs team is that it is very difficult to procure suitable accommodation outside of the main metropolitan areas. In practice, if a household such as yours does not qualify for within Greater London placement priority, the nearest available accommodation that it is possible to procure is within the West
Midlands conurbation, including Birmingham and
Wolverhampton. I can confirm that this was the position in relation to your application and that was the closest accommodation that it was possible for the Council to offer you.
 Our placement policy had been applied when making the offer. Where an applicant does not meet the criteria for an inborough or in Greater London placement this means that it is not normally possible to accommodate an applicant within either of these areas. This is the purpose of the placement policy, as explained above."
" Where accommodation which is otherwise suitable and affordable is available nearer to the authority's district than the accommodation which was secured [the latter] may not be considered to be suitable. However, our records at the point of offer clearly illustrate that at the point of offer, the property [in Smethwick] was the only property available on that date that was suitable to your household's needs."
"Hence in line with TAPP and after looking at the other properties that were available at the point of offer [the flat in Smethwick] was an appropriate offer for you and your household."
" … However in relation to paragraph 48 I have been able to confirm that there was no other accommodation at the point of offer located nearer to London."
" I also considered whether there were any special factors which meant that the policies should not be applied to you but did not find any such factors."
" Any properties either in London or in the Home Counties ring within reach of London, even if they were available, would not have been offered to yourself due to the fact that you are a non working household with a daughter below mandatory school age. If available they would have been allocated to those families that had a member of their household in employment for over six months, a child at a critical stage in their education or another special circumstance as explained in the aforementioned Temporary Accommodation Placement Policy…
 Historically private rented sector offers have been made by Brent to families away from London in such areas as Luton, High Wycombe and Margate. However as rents have increased along with competitiveness from other London boroughs who are able to match and exceed the terms that Brent can offer, this borough has for some time only been able to procure "away from London" in the West Midlands. Unfortunately whether the offer of accommodation had been made a day, week or month later it is almost certain that the offer would have been the same or in an equivalent area in the West Midlands."
"… primarily used by our "prevention team" and the pale green entries are "multiple viewing" properties used exclusively by the PRSO team. Further these properties do not provide the security of tenure offered by the two year tenancies provided by those with nomination rights."
"… a total absence, in the process from offer through to discharge letter, including the review decision letter, of any explanation, let alone a cogent explanation, as to why on the date of the offer, 18th January 2017, the Acton property … was not a property that was offered to this family."
Judicialisation of welfare services
general or target duty which is owed to a whole population (such as a power to provide social housing), I consider that where, as here, the policy in question relates specifically to a group all of whom are within the same category of persons to whom the individual duty is owed, an authority must be entitled to carry out a similar balancing exercise. That is an exercise with which the court ought to be very wary of interfering. To put the point another way the individual duty is owed both to the particular applicants, and also to all other applicants in relation to whom the authority has accepted the full housing duty. It must try as best it can to give effect to those concurrent duties.
"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."
""[Reasonable] practicability" imports a stronger duty than simply being reasonable. But if it is not reasonably practicable to accommodate "in-borough", they must generally, and where possible, try to place the household as close as possible to where they were previously living."
"The Secretary of State complains that the effect of [the Court of Appeal's] approach would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the Code and Guidance and had taken it into account; that the authority had considered and rejected the possibility of providing closer accommodation than that offered; and that the authority had good reasons for their decision in this particular case. If the courts are prepared to assume all this in the authority's favour, this would immunise from judicial scrutiny the "automatic" decisions to house people far from their home district, which was just what the 2012 Order and Supplementary Guidance were designed to prevent."
"There is little to suggest that serious consideration was given to the authority's obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquiries made to see whether school places would be available in Bletchley and what the appellant's particular medical conditions required. Those inquiries were only made after the decision had been taken. The review decision is based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in Westminster and why that had not been offered to her. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible."
" But how, it may be asked, are local authorities to go about explaining their decisions as to the location of properties offered? It is common ground that they are entitled to take account of the resources available to them, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in their area, and the practicalities of procuring accommodation in nearby authorities. It may also be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future. On the other hand, if they procure accommodation outside their own area, that will place pressures on the accommodation, education and other public services available in those other local authority areas, pressures over which the receiving local authority will have no control. The placing authority are bound to have made predictions as to the likely demand for temporary accommodation under the 1996 Act and to have made arrangements to procure it. The decision in any individual case will depend on the policies which the authority has adopted both for the procurement of temporary accommodation, together with any policies for its allocation.
 Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year. That policy should, of course, reflect the authority's statutory obligations under both the 1996 Act and the Children Act 2004. It should be approved by the democratically accountable members of the council and, ideally, it should be made publicly available. Secondly, each local authority should have, and keep up to date, a policy for allocating those units to individual homeless households.
Where there was an anticipated shortfall of "in-borough" units, that policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. That policy too should be made publicly available."
i) A housing authority is entitled to take account of the resources available to it, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in its area, and the practicalities of procuring accommodation in nearby boroughs.
ii) If there is available accommodation within-borough, it does not follow that the authority must offer it to a particular applicant because it may be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future.
iii) The decision in an individual case may depend on a policy that the authority has adopted for the procurement and allocation of accommodation.
iv) The policy should explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away.
v) The policy should be publicly available.
Adoption and application of a policy
"The decision in any individual case will depend on the policies which the authority has adopted both for the procurement of temporary accommodation, together with any policies for its allocation."
The adequacy of reasons
Lord Brown reviewed a number of authorities on the adequacy of reasons. He confirmed at  that the burden is on the challenger to show that the decision maker made an error of law. His well-known summary of principle is at . For the purposes of this case it will suffice if I only quote part of it:
"Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute and not to every material consideration… Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced."
" … review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.
 In my view, it is therefore very important that, while circuit judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.
 Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions."
"Viewed as a whole, it reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. He was doing so, as he said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving."
Brent's policy and reasons
"[Brent] therefore has to prioritise the very limited supply of accommodation within or near to borough for those most in need of it. This is done by applying the council's Temporary Accommodation Placement Policy."
"The fact that your case did not come within the criteria set for a placement within-borough or within Greater London means that, within the constraints that we operate in, it was not possible to secure housing for you and your family within those areas which would have been close to where you were previously living, while also being fair to other applicant households with far higher levels of need to be housed in those areas."
"Hence in line with TAPP and after looking at the other properties that were available at the point of offer [the flat in Smethwick] was an appropriate offer for you and your household."
Brent's Temporary Placement Policy, Mr Alibkhiet did not qualify for priority as regards a placement in Greater London. The fact that there was one potentially available unit, or possibly two, (and over 2,000 households in temporary accommodation as the reviewing officer had explained) does not undermine the application of that policy.
The section 208 duty
regards Band 2 accommodation. But that is in fact what she was offered. The housing needs officer and the reviewing officer must, therefore, have considered that there were factors in her individual case that justified affording her more generous treatment than the policy required. On the basis of the decision, she qualified for prioritisation for a Band 2 property, and that is what she got.
"It is insufficient, and unlawful, for an authority to, whether by policy or by the operation of a practice under the policy, designate certain classes of applicant in whose cases accommodation within the area will only be provided if, as luck would have it, something suitable is available on a single given day when the authority happens to look for accommodation for that applicant."
"… in the context of location, the concept of suitability can be seen to be not an absolute one, but a relative one, depending on the availability or non-availability of something closer. This relative suitability must, as I see it, have a further important consequence. As soon as one allows the test of suitability to include this relative element, it seems to me that in cases of far away placements, the test should also include some consideration of the timescale within which more suitable accommodation might be found."
"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."
chronic shortage of affordable private rented sector accommodation within both Brent and London and the South East; and that Brent cannot compete with other tenants for the limited supply of such accommodation. It explains that suitable affordable accommodation is only procurable in major conurbations. The review decision deals in terms with Brent's previous ability to offer placements in Luton, High Wycombe and Margate; and explains why that is no longer possible. Such units of accommodation that are available are allocated by applying Brent's policy. In my judgment, that is an adequate explanation of why Brent does not have access to accommodation within London and the South East.
to find somewhere in East Anglia or the East Midlands that was closer to Brent than Birmingham as the crow flies; but that places an onerous burden on a housing authority. Mr Westgate accepted that Brent was not required to scour every estate agent's window between Brent and Birmingham. In addition the review decision explained that suitable affordable accommodation is only available in main metropolitan locations. Moreover, I am by no means convinced that the simple metric of distance as the crow flies is the be-all and end-all, if one leaves out of account means of communication between the offered accommodation and the borough to which the application is made. The review decision goes into a lot of detail about means of communication between Brent and Birmingham by car, coach and train. These, in my judgment, are legitimate factors for a housing authority to take into account when considering an out of borough placement.
When does the duty to give reasons arise?
 EWCA Civ 1812,  4 WLR 123 at  (Singh LJ) and  (Hickinbottom LJ). This court considered the applicability of a common law duty to give reasons in the context of the homelessness legislation in Akhtar v Birmingham City Council  EWCA Civ 383,  HLR 28. In that case the applicant was offered accommodation which she rejected. She was successful in a review of the authority's decision that the accommodation was suitable, but the decision letter did not give reasons. She was then offered different accommodation, which she also rejected; but this time she was unsuccessful on review. Her complaint was that the first review did not give reasons; and that the letter offering the second accommodation did not explain why the first review had succeeded. Etherton LJ (with whom Maurice Kay and Rimer LJJ agreed) held that there was no duty on the authority to give reasons where not required by the statute to do so. In particular, he pointed to the requirement that the applicant be warned in writing about the consequences of refusing a final offer and said at :
"I also agree with the judge that any potential unfairness to the appellant was, in any event, avoided by the prominent warnings in both letters of the consequences of refusing a final offer, and notification of the ability to accept the offer and still to challenge it by way of review. Parliament provided that mechanism of accepting an offer while continuing to challenge it by way of review specifically to mitigate the risk to an applicant of irrevocably losing a property by challenging its suitability. Mr Nicol, as I have said, advanced various reasons why that mechanism had potential practical drawbacks for someone in the appellant's situation. Parliament's chosen mechanism for preventing injustice and hardship may not be ideal in all cases, but I cannot see that its potential drawbacks support the case for the importation of duties arising at common law for unfairness. That is particularly so where the additional duty is said to be the obligation to give reasons, but Parliament has already specified other particular circumstances where reasons must be given: for example, under s.184(3) when the authority decides any issue against an applicant as to his eligibility for any assistance and as to the existence of any duty to him under Part 7 of the Act, and under s.203 (4) when, on a review under s.202, the authority decides to confirm its original decision."
"[Westminster] has failed to explain why a move from the available temporary accommodation to the current accommodation was justified when taking into account the children's best interest."
Brent's policy as regards length of letting
Lord Justice Henderson:
Lady Justice Asplin: