El Goure v The Royal Borough of Kensington & Chelsea

For priority need under Housing Act 1996, the question is whether it is reasonable to expect dependent children to reside with the applicant, even if they already have a home with the other separated parent. The statute does not impose an additional requirement of exceptional circumstances. References to the likely rarity of two-home cases may explain the probable outcome of applying the statutory test, but cannot replace or gloss it. A reviewing authority’s decision must be read as a whole. Occasional references to an exceptional case do not establish a legal misdirection if the statutory test was in substance applied. On a second appeal, the court may intervene only for an error of law, including perversity or Wednesbury unreasonableness.

Mr Said El-Goure appealed under section 204 of the Housing Act 1996 against a county court decision dismissing his appeal from the Council’s review decision. He sought homelessness assistance on the basis that his two children, who lived with their mother, might reasonably be expected to reside with him because their mother’s disabilities made shared care difficult.

He also alleged that the Council had failed to comply with regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 by failing to notify him of his right to make representations himself or through another person. The central issues were whether the statutory priority-need test had been replaced by an impermissible exceptionality test and whether the notification duty had been discharged.

Lord Justice Mummery gave the leading judgment. Lord Justice Moore-Bick and Lady Justice Black agreed.

1. Appeal dismissed. Permission to appeal was granted, but the appellant failed on both grounds.
2. Under section 189(1)(b) of the Housing Act 1996, the operative question was whether it was reasonable to expect the children to reside with the appellant also, despite their having a home with their mother. The legislation neither expressly nor impliedly required exceptional circumstances.
3. The observations in Holmes-Moorhouse about exceptional circumstances described the probable outcome of applying the statutory test in two-home cases. They were not a substitute statutory criterion. The review decision, read as a whole, showed that the reviewing officer had applied the correct test. The references to the case or circumstances not being exceptional therefore did not amount to a misdirection.
4. The Council’s assessment was not irrational or Wednesbury unreasonable. The county court and this court, on a second appeal, had no power to interfere with that factual assessment in the absence of an error of law.
5. On regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, the Council’s letter to the appellant’s solicitors discharged the notification duty. It informed them that representations could be made on the appellant’s behalf and that a reasonable time would be allowed.
6. Alternatively, any omission was technical, inconsequential and non-prejudicial in circumstances where the appellant had experienced housing solicitors acting for him throughout. The decision was not a nullity and did not require quashing.

• Court of Appeal (Civil Division): [2012] EWCA Civ 670 granted permission to appeal and dismissed the appeal.
• Central London County Court: HHJ Faber dismissed the appellant’s section 204 appeal by order dated 10 March 2011.
• Royal Borough of Kensington & Chelsea: the Council’s review decision dated 22 November 2010 upheld its decision that the appellant was not in priority need.