Nicholas Grundy QC and Millie Polimac successful in the Court of Appeal: Alibkhiet v LB Brent [2018] EWCA Civ 2742

10th December 2018

Nick and Millie represented LB Brent in the first Court of Appeal case concerning discharge of duties to homeless applicants by an out of borough offer since the decision of the Supreme Court in Nzolameso v City of Westminster [2015] UKSC 22.  Brent’s appeal was joined with another case Adam v City of Westminster.  In both cases the relevant council had found that they owed the applicant the ‘full’ s. 193 Housing duty.

Local Housing Authorities (LHAs) can perform housing duties to homeless applicants through out of borough placements where it is not reasonably practicable to secure accommodation within their borough: see Housing Act 1996, ss. 208(1). Guidance issued by the Secretary of State goes even further stating that: (1) Where it is not reasonably practicable to offer an applicant in borough accommodation they should, where possible, be offered accommodation as close as possible to where they were previously living; (2) Where there was ‘available’ suitable accommodation closer to the LHAs district than that which was offered to an applicant the offered accommodation is, absent some justification or the applicant’s preference, unlikely to suitable.

In Nzolameso the Supreme Court, reversing the Court of Appeal and the County Court Judge, held that it was not clear from the review decision that Westminster had had regard to its obligation to secure accommodation for N within its borough so far as reasonably practicable.

The issues in Alibkhiet were as follows:

  1. Was Brent’s decision to offer A out of borough accommodation lawful, this included a challenge to Brent’s temporary accommodation allocation policy;
  2. Whether Brent’s procurement arrangements were sufficiently explained; and
  3. At what stage must an LHA give reasons for making an out of borough offer?

 

The main issue in Adam was:

  1. Whether, when in-borough accommodation was not available on the day an offer was made, to fulfil the duty to the standard of ‘reasonable practicability, the LHA must consider whether in-borough accommodation will become available within a reasonable period before discharging the duty by an out of borough offer?

 

Kim Lewison LJ, giving the leading judgment of the Court identified four principals:

  • A LHA is entitled to take account of its resources, the difficulty of procuring sufficient affordable in borough accommodation and the practicalities of securing out of borough accommodation in neighbouring boroughs [46(i)] and [48].
  • If there is in-borough accommodation, it does not follow that the authority must offer it to a particular applicant [46(ii)].
  • The decision in an individual case may depend on the LHA’s procurement and allocation policies [46(iii)].
  • The policies, which should be publicly available, should set-out the factors which will be taken into account in offering in-borough accommodation, and in making out-of-area placements [46(iv) & (v)].

 

Applying these principals to the facts in Alibkhiet Lewison LJ allowed Brent’s appeal accepted Nick and Millie’s submissions held that:

  1. Brent’s allocation policy was lawful and was applied by the Council in A’s case [56] and [67];
  2. That the review decision gave sufficient explanation of Brent’s procurement arrangements [79] to [81]; and
  3. The Court was bound by leading authority Akhtar v Birmingham CC [2011] EWCA Civ 383 that under the relevant statutory scheme the duty to give reasons arose on review [86].

 

Thus, Brent’s offer of a 2 bed flat in Smethwick was lawful even though there were 2 units of suitable accommodation available in London at the date that that offer was made.

In Adam’s case Lewison LJ refused Ms Adam’s appeal holding that:

  1. There is no obligation, in the usual course of events, for a LHA to delay performance of the s. 193 duty in the Micawberish hope that ‘something better will turn up’. [75]

 

The judgment in the joined cases case be found here.