Safi vThe Borough Council of Sandwell

Under section 175(3) of the Housing Act 1996, reasonableness of continuing to occupy accommodation is assessed prospectively. A local housing authority must consider present circumstances and foreseeable changes, including an impending birth. If occupation is unreasonable in the longer term, the authority must assess the reasonable short-term period of continued occupation and whether suitable accommodation can be obtained within that period. Housing-register priority cannot replace that analysis. Review procedures must provide a fair opportunity to make representations, including notice of the procedure and time for submissions. Express reference to children and equality duties is unnecessary where the authority has substantively considered those matters.

The appellant, a secure tenant of a one-bedroom flat, applied as homeless after her family grew and raised overcrowding, damp, disrepair and difficult access. During the review she was pregnant with a second child. The respondent’s review panel upheld the rejection of her application, relying on the suitability of the existing accommodation and likely rehousing through the housing list. The County Court at Birmingham dismissed her statutory appeal on a point of law on 7 March 2017. The appeal concerned the forward-looking approach under section 175(3) of the Housing Act 1996, the relevance of housing-list priority, compliance with review procedures, and the effect of later events.

The Court of Appeal unanimously allowed the appeal and quashed the review decision taken in June 2016.

1. Forward-looking homelessness test. Applying Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506, the court held that section 175(3) of the Housing Act 1996 requires consideration of both present circumstances and the foreseeable future. The inquiry is not confined to whether occupation is possible for another night.
2. Where foreseeable circumstances may make continued occupation unreasonable in the longer term, the authority must ask how long it remains reasonable for the household to stay in the accommodation and whether suitable accommodation can be obtained through the housing list within that period. The respondent had failed to address the effect of the appellant’s pregnancy and impending birth, relying instead on ordinary rehousing priority.
3. The authority had considered the interests of the existing child, the appellant’s pregnancy and maternity, damp, overcrowding and access. Its conclusions on the existing one-child circumstances and proposed damp inspection were not irrational. However, it had not addressed the increased access difficulty arising from a second baby. No express reference to section 11 of the Children Act 2004 or section 149 of the Equality Act 2010 was required where the relevant matters had been considered.
4. Procedural fairness. Regulation 6 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 required notice both of the right to make written representations and of the review procedure. The respondent failed to set a date for representations and decided the review before the stated eight-week period expired. That failure materially deprived the appellant of an opportunity to address new matters relied upon in the final decision and was unfair.
5. The breach of regulation 8.2, concerning notice that representations could be made orally or in writing, caused no material prejudice because written representations were submitted and no oral representations were intended. The later birth of further children did not make the appeal academic: the court’s reasons could affect the fresh application and costs remained in issue.

• Court of Appeal (Civil Division), [2018] EWCA Civ 2876, 21 December 2018: unanimously allowed the appeal and quashed the June 2016 review decision.
• County Court at Birmingham, 7 March 2017: Ms Recorder McNeill QC dismissed the appellant’s statutory appeal on a point of law.