Shamso Abdikadir v London Borough of Ealing

An authority’s duty under section 208(2) of the Housing Act 1996 to notify the receiving authority arises when out-of-borough accommodation is offered, whether or not the applicant accepts it. A later failure to notify does not invalidate an earlier, lawful decision that the full housing duty has ceased.

Under section 208(1), however, the authority must take reasonable steps to ascertain whether an in-borough placement is reasonably practicable. A lawful procurement and allocation policy may demonstrate compliance only if the authority shows that it followed that policy. General evidence of housing pressure and a shortage of accommodation is insufficient where there is no evidence that the prescribed daily search for private rented accommodation occurred.

Ealing accepted that it owed the appellant the full housing duty under section 193 of the Housing Act 1996. It offered her four-bedroom accommodation in the neighbouring London Borough of Hillingdon. She refused it, after which Ealing decided that its duty had ceased.

A fresh statutory review upheld that decision and found the accommodation suitable. The appellant challenged the review in the County Court at Central London and then appealed to the Court of Appeal.

The principal issues were whether Ealing’s failure to notify Hillingdon under section 208(2) invalidated its decision, and whether Ealing had demonstrated compliance with its section 208(1) duty to secure accommodation within its own district so far as reasonably practicable.

1. Appeal allowed unanimously. The notification ground failed, but Ealing had not demonstrated compliance with its duty under section 208(1) of the Housing Act 1996.

2. Accommodation is made available for section 208 purposes when the authority offers accommodation into which the applicant can move without delay. Acceptance is unnecessary because securing available accommodation is a unilateral act. Ealing’s notification duty therefore arose when it made the offer, although notice could be given within the statutory 14-day period.

3. Ealing’s decision that the full housing duty had ceased was made within that period, when it was not yet in breach of section 208(2). In any event, section 193(5) prescribes the conditions for cessation and does not make compliance with section 208(2) one of them. Clear statutory language would be required before a subsequent omission could invalidate a decision that was lawful when made. On a refused offer, the relevant facts were those existing when the original cessation decision was taken.

4. Section 208(1) imposes a positive obligation to show that an out-of-borough offer complied with the duty to accommodate within the district so far as reasonably practicable. An authority may consider its resources, affordable supply and the needs of applicants with a more pressing requirement to remain locally. It may discharge the obligation through lawful procurement and allocation policies, provided that it implements them correctly.

5. Ealing’s placement policy was lawful and had been correctly applied. Its overarching question was whether only accommodation in Ealing would be suitable in the longer term. The policy rationally treated a commute of up to 60 minutes as reasonable, whereas the appellant’s journey was found to be about 40 minutes.

6. The authority nevertheless had to take reasonable steps to inform itself about the practicability of an in-borough placement, even though the appellant had not expressly raised the point. Its procurement policy required officers to liaise with providers and check relevant websites daily. There was no evidence that officers had searched for available private rented accommodation in Ealing. General statements about housing pressure did not establish compliance.

7. The court could not conclude that compliance would inevitably have produced the same result. The review decision was therefore unlawful and the appeal was allowed.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The failure to notify the receiving authority did not invalidate the cessation decision, but Ealing had not demonstrated compliance with section 208(1) of the Housing Act 1996. [2022] EWCA Civ 979

2. County Court at Central London: His Honour Judge Saggerson rejected the challenge to the fresh review decision. No neutral citation is stated.

3. Earlier County Court proceedings: The appellant had successfully appealed against an earlier review, following which Ealing undertook the fresh review challenged in these proceedings.