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

Ground 1 of the grounds of appeal to the county court asserted that Enfield was in breach of its duty under section 208. In my judgment, that contention is plainly wrong. To recap, section 208 imposes a duty on a local authority to make an in-borough placement “so far as reasonably practicable.” In the present case it was not reasonably practicable to place Ms A in Enfield, because she (and the professionals involved) all considered that she would be in danger if she lived in Enfield. Moreover, it was her specific request not to be placed in Enfield. This is therefore a case in which the duty under section 208 (1) was in fact discharged by an out of borough placement.

If one were to expand this challenge to include a failure to comply with article 2 of the 2012 Order, it would still fail. The local authority’s duty under article 2 of the Order is to take into account the location of the offered accommodation and, in the case of an out of borough placement “the distance of the accommodation from the district of the authority.” It is to be noted, at this stage, that what is to be taken into account is the distance between the accommodation and the authority’s district, not the distance between the accommodation and the applicant’s former home. The reviewing officer plainly complied with that duty because she said in terms that in order to alleviate Ms A’s distress and the possibility of isolation from her support network Enfield had accommodated her not simply in a neighbouring borough, but “in particular” in an area which bordered Enfield. I do not regard the instruction to have regard to the distance of the accommodation from the district of the authority to require the authority to measure precisely the linear distance between the two.

That leads to the third widening of the challenge to encompass the Code of Guidance. The review decision stated in terms that the reviewing officer had considered the guidance; and there is no reason to disbelieve her. So, she did “have regard” to it. As I have said, guidance is guidance, not law. It is a tool in good administration, designed to enable local housing authorities to make lawful, robust and fair decisions. But it, too, must be applied with a degree of realism.

It is clear that, unlike the position in Zaman, the local authority’s supposed duty to find accommodation closer to Ms A’s former home was not a point raised in the many rounds of representations made by her solicitors. In their representations there was no objection to a placement in Haringey as such. Nor is this a case like Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] PTSR 1455 in which the applicant’s solicitors pressed the authority to explain what steps it had taken to comply with its duty under section 208. It is, to my mind, almost inconceivable that solicitors with the experience and expertise of Hodge Jones & Allen would have been unaware either of Nzolameso or the Code of Guidance. The fact that the point was not raised before the appeal to the county court is a strong indication that it was not perceived as being of importance at the time.

Although in a normal civil appeal, an appeal court will not usually allow an appeal on a point not argued below, a different approach applies on an appeal to the county court under section 204 against a review decision. The fact that a point taken in the county court was not raised on the review is not in itself fatal; but as has been said many times a court should be wary of imposing upon a reviewing officer a duty to inquire into matters that were not raised in the course of the review (Cramp v Hastings BC [2005] HLR 48 at [14]; Abdikadir at [52]; Moge at [150] to [151]); although a rather harder line was taken in Adesotu at [30] to [33].

That point is compounded in the present case by the express requests made on behalf of Ms A asking to be placed either in Hillingdon or in Broxbourne. You do not need to be an expert geographer to know that Hillingdon is the westernmost London borough, separated from Enfield by Barnet and Harrow; and Broxbourne is not even in London (as the reviewing officer pointed out). The fact that Ms A expressed a desire to remain in London but also specified an out of London location as one of her preferred locations seems to me to show that the precise linear distance between the accommodation in which she was placed, and Enfield was not of importance to her.

The DASH Risk Assessment also said that Haringey was an area that Ms A was willing to consider. The guidance states at paragraph 17.50 that 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 applicant has specified a preference or the accommodation has been offered in accordance with a published policy which provides for fair and reasonable allocation of accommodation that is or may become available to applicants. Paragraph 17.51 states that an authority should “generally” try to secure accommodation that is as close as possible to the applicant’s former address. Self-evidently “generally” is not the same as “always”. The accommodation in fact offered by Enfield was actually closer to where Ms A was living than either of her preferred alternatives; and was in an area that Ms A was willing to consider. Ms A’s specific request to be placed further away is, in my view, ample justification for Enfield not being required to search for accommodation closer to Ms A’s former address than Studio B. To have placed her closer to the borough boundary or her former address than she was in fact placed would have run the risk that she would once again be in the danger zone.

It is also, in my view, pertinent to consider why the Code of Guidance is expressed as it is. The underlying reason is to avoid difficulties for the applicant; and to enable them to maintain established links. That was the topic that the reviewing officer considered in paragraphs 41 and 48 of her decision. In the first of those paragraphs, she said that one of the reasons for placing Ms A at Studio B was to alleviate the possibility of isolation from her support network. In the second, she concluded that the location of Studio B would enable Ms A to remain in contact with her support in Enfield. The underlying reason for the guidance was thus satisfied. Moreover, the underlying rationale of this part of the guidance also suggests that the simple metric of linear distance as the crow flies is not the be-all and end-all, as I said in Alibkhiet at [80]. The authority must be entitled to consider transport links as well as linear distance.

In addition, I consider that the accommodation offered to Ms A in Haringey complied with Enfield’s placement policy. It is not, as I understand it, alleged that Enfield’s placement policy is unlawful. The existence of a fair and reasonable policy, according to paragraph 17.50 of the Code of Guidance, is another circumstance in which the guidance needs to be applied with flexibility, provided that the policy is correctly applied. Decision-making in accordance with lawful policy was also commended by Lady Hale in Nzolameso at [38] to [40], echoed in Abdikadir at [37] (vii) and Zaman at [47] (v). This is not an extreme case like Nzolameso where Westminster placed Ms Nzolameso in Bletchley; or like Zaman in which, having applied to Waltham Forest for homelessness assistance, Ms Zaman was placed in Stoke on Trent, 160 miles away.

Plainly, a local authority must take reasonable steps to inform itself before making a decision about placement. An authority is not required to scour every estate agent’s window between the offered accommodation and the applicant’s former address (Alibkhiet at [80]); or to investigate every theoretical possibility where something closer may be found (Moge at [144]). I also discussed the extent of the duty in Abdikadir at [51] to [53]. But I went on to say at [54]:

“What steps are reasonable steps to take in order to fulfil that duty is a question of judgment for the housing authority; but its decision on that question is, in my judgment, to be found in the terms of its policies which can be taken to be [the authority’s] considered judgment on the question.”

On the first appeal to the county court, it was surprisingly argued that had Enfield applied its policy, Ms A would have been accommodated within borough. That argument was plainly a non-starter given that it was agreed on all hands that it would have been dangerous for her to be accommodated within Enfield. The suggestion now is that Enfield failed to apply its placement policy because it did not search for accommodation as close as possible to where Ms A was previously living. But that is not what the policy says; for two reasons. First, it says that out of borough accommodation will be “close” to Enfield; not “as close as possible”. Second, the closeness referred to in the policy is closeness to Enfield, not closeness to an applicant’s previous address. Studio B satisfied both criteria. In addition, whether accommodation is “close” to Enfield is a question of fact or an evaluative decision for the reviewing officer to make. If a policy is lawful and is properly applied, that will normally be both a lawful decision and also sufficient to explain why a decision has been taken: Alibkhiet at [48] and [53]. This challenge therefore also fails.

I regret to say that I regard this challenge as an opportunistic technical point devoid of substance. It is a prime example of the judicialisation of welfare services, which has been consistently deprecated. Echoing Lord Carnwath in Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36; [2017] AC 624 at [39], I consider that:

“Viewed as a whole, [the review decision] reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. [She] was doing so, as [she] said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving.”

I would hold that Enfield committed no breach of statutory duty, and no breach of its placement policy. There is no legal flaw in the review decision. This ground of appeal therefore succeeds.