London Borough of Waltham Forest v Saleh

A review under section 202 of the Housing Act 1996 is a fresh reconsideration of the relevant housing decision. Where an applicant has accepted out-of-district accommodation and it remains available, suitability must be assessed by reference to all material circumstances at the date of review.

The authority must therefore consider whether suitable accommodation has since become available within, or closer to, its district. Location is part of suitability. Accommodation farther away is unlikely to remain suitable where equally suitable and affordable accommodation is available nearer the district, unless the applicant prefers the placement or another justifiable reason exists.

The Council accepted that it owed the respondent and his family the full housing duty under section 193(2) of the Housing Act 1996. It placed them in temporary accommodation outside its district. The respondent accepted the accommodation but sought a review of its suitability, relying particularly on the effect of the journey to school upon his daughter, who had Type 1 diabetes.

The review officer upheld the original decision without investigating whether suitable accommodation was available within, or closer to, the Council’s district at the date of review. On an appeal under section 204, the County Court set the review decision aside. The Council appealed. The central issue was whether a section 202 review considers circumstances at the review date or is confined to those existing when the original decision was made.

1. Appeal dismissed. A section 202 review is a reconsideration or replacement of the original administrative decision-making process. Where the applicant has accepted the offered accommodation and it remains available, the reviewing officer must decide suitability in the light of all material circumstances existing at the date of review. The review is not confined to determining whether the original decision was correct on the information then available.

2. Suitability is a continuing requirement under sections 193(2) and 206(1) of the Housing Act 1996. Accommodation which was suitable when offered may cease to be suitable because of changing household needs, the expected duration of occupation or the passage of time. This approach was consistent with Mohamed v Hammersmith and Fulham London Borough Council, Omar v Westminster City Council, Abed v City of Westminster and Temur v Hackney LBC.

3. Location forms part of the suitability assessment. Article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012 and the applicable statutory guidance require consideration of distance from the authority’s district, disruption to education, access to medical facilities and other essential links. Under section 208(1), an authority must secure accommodation within its district so far as reasonably practicable. If this cannot be done, it should generally seek accommodation as close as possible to the applicant’s former home.

4. The assessment may require a comparison of available accommodation. Where otherwise suitable and affordable accommodation is available nearer the authority’s district, a more distant placement is unlikely to be suitable unless the applicant prefers it or the authority has another justifiable reason. Accordingly, a review of an accepted out-of-district placement must consider whether suitable accommodation within, or closer to, the district has become available by the review date.

5. The review officer had made no such investigation. The County Court therefore correctly held that the review decision was legally flawed and set it aside. It was unnecessary to decide the respondent’s challenges under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 or procedural fairness.

1. Court of Appeal (Civil Division): The Council’s appeal was dismissed unanimously. The order setting aside the review decision was upheld.

2. County Court at Central London: HH Judge Saggerson allowed the respondent’s appeal under section 204 of the Housing Act 1996 and set aside the review decision. He held that the reviewing officer should have considered the availability of suitable accommodation at the review date. He rejected the grounds based on regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and procedural unfairness.