Safi v The Borough Council of Sandwell

The Court of Appeal allowed the appellant's appeal and quashed the respondent's June 2016 homelessness review decision. The court applied the forward-looking construction of section 175(3) of the Housing Act 1996, as explained in Birmingham City Council v Ali, and held that the reviewing officer was obliged to consider whether it was reasonable for the appellant to continue to occupy the flat in the foreseeable future (including the impending birth of a child) rather than merely the immediate position.

The court also found material procedural defects: the review process breached the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 by failing to specify the procedure and a deadline for representations (regulation 6) and by defects in the "minded to" notice and associated procedure (regulation 8), which denied the appellant a proper opportunity to address matters relied on in the final decision. Subsidiary points that the authority had considered children and maternity/equality duties were rejected: the court held those statutory duties were encompassed within the Housing Act duties and there was no need for express separate statements.

Background and parties. The appellant, Ms Safi, was a secure council tenant living in a one-bedroom first-floor flat. She applied to Sandwell Borough Council as homeless under Part VII of the Housing Act 1996 on grounds that the flat was overcrowded following the birth of a child, suffered from damp and disrepair, and was difficult to access with a pram. The council rejected the application and a Homelessness Review Panel upheld that decision. The appellant appealed to the county court, which dismissed the appeal, and then obtained permission to appeal to the Court of Appeal.

Nature of the application. The appeal concerned a statutory appeal on a point of law against the council's review decision under the homelessness provisions of the Housing Act 1996. The appellant sought quashing of the review decision and a finding that she was homeless or that the decision-making process was unlawful.

Issues framed by the court.

• Whether the council applied the correct legal test under section 175(3) of the Housing Act 1996, specifically whether it looked forward to the foreseeable future (including the imminent birth) rather than only the immediate position, as required by Birmingham City Council v Ali.
• Whether the council had regard to irrelevant considerations, notably reliance on the housing register and allocation prospects.
• Whether the council breached the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, including failure to give adequate notice of the procedure and failure properly to run a "minded to" process.
• Whether the panel acted unfairly or in breach of natural justice by failing to permit responses to matters first relied on in the final decision.
• Whether the council failed to have proper regard to duties under section 11 of the Children Act 2004 and section 149 of the Equality Act 2010.

Court's reasoning and disposition. The Court of Appeal held (i) the council did not adequately apply the forward-looking test in section 175(3); it failed to ask whether, in the light of the appellant's pregnancy and the foreseeable birth, it was reasonable for her to continue to occupy the flat for the foreseeable future and, if not, how long a short period of occupation would be reasonable and whether rehousing could be achieved in that period; (ii) the review process breached regulation 6 by failing to set out the procedure and a deadline for representations and breached regulation 8 in relation to the "minded to" notice; those procedural failures prevented the appellant from replying to points later relied on in the final decision and rendered the process unfair; (iii) challenges based on section 11 Children Act 2004 and section 149 Equality Act 2010 failed because the relevant interests had been taken into account within the housing decision-making; and (iv) for these reasons the review decision of June 2016 was quashed. The court declined to refuse relief as academic despite a later fresh application because the reasoning may affect the fresh application and costs.

Appeal allowed. The Court of Appeal quashed the Homelessness Review Panel's decision of June 2016 because the authority failed to apply the forward-looking test in section 175(3) of the Housing Act 1996 as explained in Birmingham City Council v Ali and committed material procedural errors under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, including failing to give adequate notice of the procedure and to allow the applicant to address matters first raised in the final decision.

Decision of Homelessness Review Panel (Sandwell MBC) 20 June 2016; statutory appeal to the County Court at Birmingham (Ms Recorder McNeill QC) dismissed on 7 March 2017; permission to appeal to the Court of Appeal granted by Newey LJ; Court of Appeal judgment [2018] EWCA Civ 2876 on 21 December 2018.