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

The leading case on the duty, so far as practicable, to secure that accommodation is available for an applicant in the local authority’s own district is Nzolameso v Westminster City Council [2015] UKSC 22, [2015] PTSR 549. The applicant, a single mother with serious health problems, lived in Westminster with her five children aged between 8 and 14. In 2012, following her eviction from the house she rented in the area, she and her family became homeless. The local housing authority explained that since there was a severe shortage of accommodation in Westminster it was not reasonably practicable to offer her accommodation within its district and it offered her temporary accommodation which it considered suitable in Bletchley, near Milton Keynes, some 40 miles away. On a review under section 202 the housing authority’s reviewing officer upheld its decisions that the premises were suitable and that it had discharged its duty, observing that the housing authority was suffering a severe shortage of accommodation and therefore some temporary accommodation it offered had to be located outside its district.The authority produced no evidence of their policy in relation to the procurement of accommodation in order to fulfil their obligations under the 1996 Act, nor of the location of that accommodation, nor of the instructions given to the temporary lettings team as to how they were to decide which properties should be offered to which applicants. Lady Hale, who gave the only judgment, quoted from the then current Code and the supplementary guidance given in November 2012. Paragraph 49 of the latter document stated that “Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was living.” Lady Hale then said at [19]:

“The effect, therefore, is that local authorities have a statutory duty to accommodate within their area so far as this is reasonably practicable. “Reasonably 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. There will be some cases where this does not apply, for example where there are clear benefits in placing the applicant outside the district, because of domestic violence or to break links with negative influences within the district, and others where the applicant does not mind where she goes or actively wants to move out of the area.”

In my view the third of the quoted sentences did no more than reflect the supplementary guidance given by the Secretary of State, as Newey LJ noted in Zaman v Waltham Forest LBC [2023] EWCA Civ 322, [2023] PTSR 1643 at [47] (iii). Lady Hale was not laying down some judge-made law. To that extent, therefore, I respectfully question whether the explanation given by Males LJ in Moge v Ealing LBC [2023] EWCA Civ 464, [2023] PTSR 1678 at [142] (“a judge-made expansion of section 208”) is correct.

It is not entirely clear from paragraph [19] of Lady Hale’s judgment whether, in saying that “There will be some cases where this does not apply, for example where there are clear benefits in placing the applicant outside the district, because of domestic violence…”, she intended the word “this” to refer only to the statutory duty under section 208 (1), or whether it encompassed the supplementary guidance as well. But I do not think that we have to answer this conundrum for the purposes of this appeal.

The problem in Nzolameso was that Westminster had not adequately explained their decision to offer Ms Nzolameso a placement in Bletchley. Lady Hale dealt with this at [36]. She concluded that paragraph by saying:

“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.” (Emphasis added)

Lady Hale went on to say at [38] and [39] that ideally a 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 current year.

This court considered Nzolameso in Alibkhiet v Brent LBC [2018] EWCA Civ 2742, [2019] HLR 15. In that case, Brent had placed Mr Alibkhiet in Smethwick in the West Midlands. At [46] I drew some general points from Lady Hale’s judgment, although none is directly relevant to this appeal. At [47] and [48] I considered the role of a local authority’s policy and said:

“The policy must, of course, be a lawful one; and conformably with public law principles relating to policies there must be room for the exceptional case. But in principle, where a public authority has a lawful policy, then provided that it implements the policy correctly its decision in an individual case will itself be lawful.”

That observation appears to me to have been endorsed in Zaman at [47] (iv).

In Alibkhiet one of the arguments was that Brent had not adequately explained why Mr Alibkhiet had not been offered accommodation in London. Rejecting that argument, I said that Brent had adequately explained why Mr Alibkhiet had not been placed in London or the southeast. I continued at [80]:

“Once that area is eliminated, the West Midlands seems to me to be the next available pool of supply. It is, I suppose, theoretically possible that Brent might have been able 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.”

I also agree entirely with Males LJ (with whom Thirlwall LJ agreed) in Moge that, although the guidance applies both where the offered placement is in a different part of the country, and also where it is in a neighbouring London borough, it must be applied with reasonable flexibility. As he put it at [145] (omitting citations):

“In my view some flexibility is also appropriate when considering an offer of accommodation in a neighbouring borough. If the accommodation offered is reasonably close to where an applicant was previously living, it should not matter that some other accommodation is marginally closer: a local authority’s obligation is to have regard to the Guidance, which is after all only Guidance, while the authorities formulate the principle in terms of what must generally be done, where possible…. Any other conclusion would risk the “judicialisation” of the process against which the cases have repeatedly warned and would impose unduly onerous obligations on hard-pressed local authorities with limited resources, faced with an acute housing shortage with multiple applicants for every property … warning against “an overly technical or nit-picking approach.”

That, to my mind, is also borne out by that part of Lady Hale’s judgment in Nzolameso at [19] and [36] which I have quoted above. In paragraph [19] Lady Hale expressly contemplated someone who wanted to move out of the area (as Ms A did) and cases where the applicant did not mind where she was placed. In paragraph [36] Lady Hale did not suggest that the distance between each potential unit of accommodation and the borough to which the application was made should be precisely measured. One of the contrasts she drew was between the placement in Bletchley and a placement “in the whole of Greater London”. She was clearly dealing with the question on a broad-brush basis.

As Males LJ rightly said, the guidance is, after all, guidance, not law, and the local authority’s obligation is to “have regard” to it, not necessarily to apply it as if it were itself a statutory obligation; although if an authority decides to depart from the guidance, it must give reasons for doing so: R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37. In R (Alvi) v SSHD [2012] UKSC 33, [2012] 1 WLR 2208 Lord Clarke put it this way at [120]:

“It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result.”

In addition to some flexibility, I consider that the guidance should also be applied with a degree of realism, and a recognition of the pressures that local authorities with limited resources face in coping with applications for homelessness assistance.