CA-2024-001940 - [2025] EWCA Civ 1355

Section 208 (2) and (4) required Enfield as the placing authority to notify Haringey, as the host authority, of the placement. The notification had to be given with 14 days after the accommodation in Haringey had been made available to Ms A. In fact, Enfield did not notify Haringey until 8 November 2023, which was both after the review decision and, indeed, after Ms A had launched her appeal to the county court. There is no doubt, therefore, that Enfield was in breach of its statutory duty to notify Haringey within the statutory time frame that it had placed Ms A within Haringey. Reflecting the way in which Ms A’s ground of appeal on this issue was framed, the judge appears to have decided that breach of the imperative duty in section 208 (2) and (4) was a ground for quashing the review decision. But that is not the end of the inquiry. It is not enough merely to say that there has been a failure to comply with an imperative statutory requirement. As is all too common, Parliament has expressed itself in imperative terms in creating a duty, but has omitted to spell out what consequences flow from a failure to comply with that duty.

In his oral submissions before us, Mr Vanhegan disavowed the argument that he had presented to the judge below. He accepted that the mere fact that there had been a failure to comply with section 208 (2) and (4) did not itself invalidate a review decision. But what was difficult to understand was why he said it did in this case.

The modern approach is illustrated in a number of cases, including R v Soneji [2005] UKHL 49, [2006] 1 AC 340; A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2025] AC 1075; R v Layden [2025] UKSC 12, [2025] 2 WLR 740 and (in the context of homelessness) Norton v Haringey LBC [2025] EWCA Civ 746, [2025] HLR 39 and Fatolahzadeh v Barnet LBC [2025] EWCA Civ 1174. The judge was not referred to this line of authority, much of which post-dated his judgment. Indeed the approach illustrated by these cases was a point to which the court itself drew attention some days before the hearing of this appeal. I am satisfied that both parties have had a proper opportunity to consider it.

In A1 Properties Ltd a claim notice was served claiming the right to manage a block of flats. The statutory requirement was to serve the claim notice on each landlord under a lease of the whole or part of the block. There were three relevant persons: the freeholder of the block, a management company and the intermediate landlord of the communal areas of the block. The claim notice was served on the first two, but not the third. The question was whether that failure invalidated the claim notice. In such a case, the function of the court, as stated by Lords Briggs and Sales at [61] is:

“… to focus … on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement.”

In looking at the question of prejudice, Lords Briggs and Sales said at [92]:

“In both cases, the focus is on the position of the party directly affected by the procedural omission. The omission does not give other persons who are not so affected (for example, other landlords who have been properly served with a claim notice) a right to object to the making of a transfer order if the party who is so affected has not sought to complain about this. There is no good reason to suppose that Parliament intended that a person which has not itself been affected by a procedural omission in relation to another should acquire, by a windfall, a power to thwart the operation of the statutory process which it would not otherwise have enjoyed.”

Mr Vanhegan placed some reliance on the decision of this court in Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] PTSR 1455 in which I discussed at [23] to [35] some of the limitations and problems associated with the duty to notify under section 208 (2) and (4). But that was a case in which the offer of accommodation had been refused, and, on the facts, Ealing was not in breach of its duty to notify. I do not consider that that case helps to answer the question: what are the consequences if the local authority is in breach of its obligation to notify?

The first question is to consider the purpose of the notification requirement under section 208 (2) and (4). There is very little authority on that question. Mr Vanhegan suggested that one purpose of notification under section 208 was to encourage the host authority to provide information to the placing authority about the suitability of the accommodation in question. In a case in which the applicant both accepted an offer of accommodation but also requested a review of the suitability of that accommodation, notification within the time period of 14 days after the accommodation was made available might result in the placing authority being given useful information in time for a review decision on suitability.

One difficulty with this argument is that the host authority is not obliged to do anything in response to receipt of the notification; and whether the host authority either has relevant information or is willing to provide it to the placing authority is pure speculation. In addition, the duty to notify arises when the accommodation is made available to the applicant; and it applies whether or not the applicant asks for a review of the suitability of that accommodation. So, an argument which ties the significance of notification to the review process is, in my view, erroneous.

Second, it was suggested that one purpose might be to alert other authorities (for example the social services authority or the education authority) that the applicant has been placed within the area of the host authority. But section 208 only requires the housing authority to be notified. In some places that authority might be the same local authority as the social services authority or the education authority; but in other places responsibility might be shared between, say, a district council and a county council.

A more plausible explanation of the purpose of notification lies in the allocation of responsibilities of different housing authorities in relation to out of borough placements. Section 198 (4) of the Act provides:

“(4)

The conditions for referral of the case to another authority are also met if—

(a)

the applicant was on a previous application made to that other authority placed (in pursuance of their functions under this Part) in accommodation in the district of the authority to whom his application is now made, and

(b)

the previous application was within such period as may be prescribed of the present application.”

The prescribed period is the aggregate of (a) five years and (b) the period beginning on the date of the previous application and ending on the date on which the applicant was first placed in pursuance of that application in the district of the authority to whom the application is made: Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006 reg. 3.

The effect of these provisions, as applied to this case, is that Enfield retains responsibility for Ms A until the prescribed period has come to an end. The purpose of the notification, on this basis, is that Haringey should know when the period began and when it will end. This ties in with R (Sacupima) v Newham LBC [2001] 1 WLR 563, 575 in which Latham LJ said:

“There is a clear and sensible purpose to be served by the section, namely to ensure so far as possible that housing authorities do not simply decant homeless persons into areas for which other authorities are responsible. There are significant consequences on a host authority, for example, by way of social service provision, which are obviously detrimental to the host authority, and as to which Parliament could properly consider that they require protection.”

That also reflects the fact that section 208 (2) does not require the placing authority to notify the applicant. The only person entitled to be notified under that section is the host authority. As Mr Vanhegan submitted, the duty under section 208 (2) is not a duty owed to the applicant, who is not entitled to be told whether or not the notification has been given, still less the date on which it was given. Moreover, the duty to notify does not arise until after the placing authority has made the accommodation available to the applicant. The duty to notify must be performed within 14 days after the accommodation is made available. Like most statutory time limits, there is no power to extend it. If, therefore, failure to comply with that duty invalidates a previous offer of accommodation, it does not matter whether the placing authority was one day late or one year late in notifying the host authority. A failure to notify under section 208 (2) is not a decision which, in itself, gives rise to the right on the part of an applicant to a review. Its only significance, if any, is to the question of suitability of the offered accommodation: Waltham Forest LBC v Saleh [2019] EWCA Civ 1944, [2020] PTSR 621 at [30]. But since the duty to notify is not a duty owed to the applicant; the applicant is not even entitled to be informed whether or not the notification has been given, and the duty only arises after accommodation has been made available to the applicant, how can the mere fact that notification has been given late affect the suitability of the offered accommodation?

If an applicant is offered out of borough accommodation which is suitable when the offer is made, and the applicant takes up that offer, I find it difficult to suppose that Parliament’s intention can have been that the accommodation becomes unsuitable 14 days later simply because the placing authority has not notified the host authority in accordance with the statutory time limit. To allow the applicant to assert that the accommodation has become unsuitable for that reason would, indeed, be to give that applicant, by a windfall, power to upset what is otherwise a lawful decision. In principle, it seems to me, a decision made by a public authority is either valid or invalid at the time that it is made; and that clear legislative provision would be needed before a valid decision is retrospectively invalidated.

The second question is what, if any, prejudice has the person directly affected by the procedural omission suffered? That person is Haringey. Although we have seen the belated notification to Haringey of Ms A’s placement, we have seen no reply from Haringey. If Haringey have no objection to the placement, and they now have the required information, it is difficult to see what prejudice they have suffered from the failure to notify in time.

But even looked at from the perspective of Ms A (who is not directly affected and to whom no duty to notify was owed), what prejudice or injustice has she suffered? She was not entitled to be notified under section 208 (2) and (4). She was entitled to be offered suitable accommodation; and that is precisely what she obtained: compare Norton at [49].

In my judgment, a failure to give notification under section 208 within the statutory time limit does not affect the suitability of the offered accommodation. It is the suitability of the accommodation which is the subject of the review; and any appeal must challenge the lawfulness of that decision. The duty to notify the host authority is an entirely collateral duty, breach of which does not in my view impugn the lawfulness of a review decision. It follows that since a failure on the part of the placing authority to notify the host authority under section 208 (2) and (4) does not affect the suitability of the offered accommodation, it falls outside the scope of any appeal under section 204 which is limited to grounds that go to the legality of the review decision.

I do not consider that the judge was justified in quashing Enfield’s decision on this ground. This ground of appeal is also a good one.