Late s208 Notifications Are Collateral and Do Not Invalidate Suitability Reviews: A Flexible, Policy-Led Approach to Out-of-Borough Homelessness Placements

Case: London Borough of Enfield v A [2025] EWCA Civ 1355

Court: Court of Appeal (Civil Division)

Date: 27 October 2025

Introduction

This Court of Appeal decision addresses two recurring issues in homelessness law under Part 7 of the Housing Act 1996: (1) what section 208(1) requires of a local housing authority when it makes an out-of-borough placement; and (2) the consequences of failing to notify the host authority under section 208(2) and (4) within 14 days. The judgment clarifies that the local authority’s obligation to consider location is guided by statutory order and the Code, applied flexibly and realistically, and that a breach of the statutory notification duty is a collateral default which neither renders accommodation unsuitable nor provides a freestanding ground of appeal under section 204.

The appellant was the London Borough of Enfield. The respondent, Ms A, was accepted as owed the main housing duty following domestic abuse by an ex-partner, MB, who was convicted and made subject to a restraining order. Given safety concerns, Ms A did not wish to be placed in Enfield. Enfield offered and Ms A accepted temporary accommodation in a neighbouring borough (Haringey), which she then asked the authority to review for suitability.

On appeal, Ms A argued (i) Enfield had failed to search for accommodation closer to her former home than the property actually offered; and (ii) Enfield breached the section 208 duty to notify Haringey within 14 days, and that breach infected the review decision. The county court allowed her appeal and quashed the review. The Court of Appeal reversed, allowing Enfield’s appeal on both grounds.

Summary of the Judgment

• No breach of section 208(1): Because of the risk of violence and Ms A’s wish not to be placed in Enfield, it was not reasonably practicable to accommodate her “in district” (para 41). An out-of-borough placement therefore discharged the duty.
• Distance is to the district, not the former home: Under article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012, what must be taken into account in an out-of-borough placement is the distance from the authority’s district, not from the applicant’s former address (para 42).
• Guidance is advisory, to be applied flexibly with realism: The Homelessness Code of Guidance was “had regard to.” It is guidance, not law, and should not be judicialised. The authority may take into account transport links and support networks; it need not precisely measure linear distance or scour every potential property (paras 43, 48, 50).
• Placement policy matters and “close” ≠ “as close as possible”: Enfield’s placement policy lawfully prefers in-borough placements but permits out-of-borough for safety and shortage reasons; where out-of-borough, it aims for “close” to Enfield. That is not the same as “as close as possible,” and it refers to closeness to the borough, not to the former address (para 51).
• Section 208(2), (4) notification breach is collateral: Late notification to the host authority does not affect the suitability of the accommodation and is not a basis to quash a suitability review on a section 204 appeal (paras 70–71). Applying the modern “purpose and prejudice” approach, the person directly affected is the host authority; absent prejudice to it, the breach does not taint the review decision (paras 56–58, 65–69).
• Appeal allowed: Enfield succeeded on both substantive grounds; the question of relief did not arise (para 72).

Analysis

Precedents Cited and Their Influence

• Nzolameso v Westminster CC [2015] UKSC 22: The leading authority on section 208(1), confirming a duty to accommodate in-borough “so far as reasonably practicable” and, where not practicable, to try generally to place as close as possible to where the applicant lived, subject to exceptions (e.g., domestic violence) and the need for clear reasoning and policy-led decision-making. Here, the court emphasised that Lady Hale’s articulation reflects guidance rather than judge-made expansion of section 208 (paras 29–31). Critically, the fault in Nzolameso was inadequate explanation and lack of policy; Enfield’s decision-making was the opposite—policy-based, reasoned, and responsive to safety concerns.
• Alibkhiet v Brent LBC [2018] EWCA Civ 2742: Endorsed policy-led decision-making and rejected an onerous requirement to scour every possibility or to treat linear distance as determinative, allowing consideration of transport links as legitimate factors (para 36). This judgment takes the same pragmatic approach—proximity is not a rigid metric, and distance “as the crow flies” is not the be-all and end-all (paras 36, 48, 50).
• Zaman v Waltham Forest LBC [2023] EWCA Civ 322: Confirmed that Lady Hale’s statements about proximity reflect guidance (para 30) and endorsed the lawfulness of policy-driven allocations when properly applied (para 35). That support underwrites Enfield’s reliance on its placement policy and the flexible application of the Code.
• Moge v Ealing LBC [2023] EWCA Civ 464: Stressed flexibility, especially with neighbouring boroughs, warning against “an overly technical or nit-picking approach” and against “judicialisation” (para 37). The present judgment explicitly leans into this approach, avoiding hyper-technical distance comparisons.
• Abdikadir v Ealing LBC [2022] EWCA Civ 979: Addressed the scope of the authority’s investigative duties and the importance of arguments raised during the review. Here, the court notes the point about “searching for closer accommodation” was not put to the reviewing officer, reinforcing restraint in imposing ex post facto investigatory duties (paras 44–46).
• Khatun v Newham LBC [2004] EWCA Civ 55 and R (Alvi) v SSHD [2012] UKSC 33: Confirm the distinction between “guidance” (advisory) and “rules” (mandatory), and the requirement to give reasons if departing from guidance. The court applies this to explain why adherence to policy and flexible engagement with the Code sufficed (paras 39, 43).
• Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36: Warned against over-judicialising welfare decisions. The court echoes that theme, describing the challenge as an “opportunistic technical point” and commending careful, practical decision-making by the reviewing officer (para 52).
• James v Hertsmere BC [2020] EWCA Civ 489 and Adesotu v Lewisham BC [2019] EWCA Civ 1405: On the scope of section 204 appeals: they are appeals on points of law going to the lawfulness of the review decision and allow the court to consider public law grounds, but they are not the same as judicial review, and not every procedural failure elsewhere is in scope (paras 24, 23). This underpins the conclusion that a collateral s208 notice breach falls outside a s204 appeal (para 70).
• R v Soneji [2005] UKHL 49, A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, R v Layden [2025] UKSC 12: Establish the modern purposive approach to statutory procedural breaches: analyse the purpose of the requirement and any prejudice to the person directly affected. That framework is applied to s208 notification and is decisive here (paras 56–58).
• Norton v Haringey LBC [2025] EWCA Civ 746 and Fatolahzadeh v Barnet LBC [2025] EWCA Civ 1174: Recent homelessness authorities applying the Soneji/A1 framework to procedural errors, emphasising purpose, prejudice, and practical justice (para 56).
• R (Sacupima) v Newham LBC [2001] 1 WLR 563: On the rationale of section 208 notification: to avoid “decanting” burdens onto host authorities and to enable inter-authority responsibility management. The court uses this to explain why the person directly affected by late notification is the host authority, not the applicant (paras 63–66).
• Waltham Forest LBC v Saleh [2019] EWCA Civ 1944: Recognises that s208 notice issues relate, at most, to suitability; yet the court here goes further to hold that late notice does not affect suitability at all (para 66).

Legal Reasoning

1) Section 208(1), the 2012 Order, and the Code: proximity and flexibility

The court re-centres the section 208(1) duty—“so far as reasonably practicable”—around the facts of safety and applicant preference. Where an applicant cannot safely live in-borough, an out-of-borough placement discharges the duty (para 41). Article 2 of the 2012 Order directs the decision-maker to take into account the accommodation’s location, including “the distance … from the district of the authority” (emphasis added), not the applicant’s former address (para 42).

The Code (paras 17.50–17.51) is a guide, not a rule. It urges authorities, generally and where possible, to place as close as possible and nearer rather than further if otherwise suitable options exist. But the Code itself recognises exceptions, including domestic abuse (para 17.57), and allows an applicant’s specified preferences to alter the analysis (para 17.50). Here, Ms A expressly wished not to be in Enfield, was willing to consider Haringey (per the DASH assessment), and even suggested locations much further afield (Hillingdon; Broxbourne). The reviewing officer’s decision aligns with the Code’s underlying rationale (maintaining support links) and applies it with realism (transport options; proximity to amenities) (paras 47–48).

The court rejects a granular, linear-distance approach and “scouring” for marginally nearer properties, particularly in a neighbouring borough. Transport connectivity, support networks, and policy-based distribution are legitimate considerations (paras 36–38, 48, 50). This is consistent with Nzolameso, Alibkhiet, and Moge.

2) Placement policy and its interpretation

Enfield’s policy commits to in-borough placements where possible, with out-of-borough used where there is a continuing threat or lack of suitable, affordable stock, aiming “where possible” to place “close to Enfield” (para 8). The court carefully reads “close” as close to the district (not “as close as possible”) and not in reference to the former address (para 51). That interpretation is important: it reaffirms that lawfully framed and applied policies guide lawful individual decisions and can justify outcomes that differ from literalist readings of the Code.

3) The late s208 notification: purpose, prejudice, and collateral breach

The core development in the judgment is the treatment of late notification to the host authority under section 208(2) and (4). The court applies the modern Soneji/A1 Properties purposive approach: identify the statutory purpose and assess prejudice to the person directly affected (paras 56–58).

Purpose: section 208 notification structures inter-authority responsibility, allowing host authorities to know when and for how long a placement occurs, especially in the context of referral and responsibility provisions (sections 198(4), associated regulations), and to avoid silent burden-shifting (Sacupima) (paras 63–66).

Affected person: the host authority, not the applicant. There is no statutory right for the applicant to be notified; the duty arises after accommodation is made available; and there is no power to extend the 14-day limit. The breach does not retroactively alter the suitability of accommodation that was suitable when offered (paras 66–67).

Prejudice: there was no evidence Haringey objected or suffered injustice from the delay (para 68). From Ms A’s perspective, she suffered no prejudice cognisable under the statute (para 69). As such, the breach is collateral. It neither taints the review decision nor supplies a ground for a section 204 appeal, which must be confined to the lawfulness of the suitability review itself (paras 70–71).

Impact

For housing authorities

• Policy-led placements are fortified: A clear, lawful placement policy that articulates how out-of-borough placements are sourced and allocated remains the best defence to challenge. Applying it consistently and recording reasons that reflect both the 2012 Order and the Code will usually be sufficient.
• Flexibility in proximity assessments: When safety or applicant preference dictates out-of-borough placement, authorities need not prove they have located the single closest property. Factors such as transport links, support networks, and availability in metropolitan markets may legitimately outweigh linear distance comparisons.
• Notification errors will not usually unravel placements: A late section 208 notice does not, without more, affect suitability or a section 204 appeal. However, authorities should still comply: a host authority could in principle challenge prejudice to its interests via judicial review; and non-compliance could have reputational, inter-authority, or systemic consequences.
• Importance of the review record: The court noted that the “closer search” point was not raised during the review despite experienced representation. Reviewing officers are not expected to investigate unraised, speculative alternatives; a balanced reasoned decision referencing policy, Code, and location factors will generally withstand appeal.

For applicants and advisers

• Safety-driven out-of-borough placements are compatible with section 208: Where domestic abuse risk precludes in-borough accommodation, section 208(1) is satisfied by out-of-borough placements, and the Code’s “as close as possible” principle yields to safety and preference.
• Be strategic in review representations: If the applicant seeks a closer placement, explicitly raise that during the review and articulate concrete reasons (e.g., specific school, care, medical appointments) rather than broad references to “closeness.”
• Section 208 notice breaches are not appeal points: A late host-notification, without prejudice, will not invalidate a suitability decision on a section 204 appeal. Potential remedies lie elsewhere (e.g., host authority action), not in the applicant’s suitability appeal.

Complex Concepts Simplified

• “So far as reasonably practicable” (section 208(1)): The authority must try to place in-borough unless there are compelling reasons it cannot do so—e.g., safety risks or no suitable/affordable stock. Where in-borough is not reasonably practicable, an out-of-borough placement is lawful.
• “Suitability” (sections 206, 210 and 2012 Order): The authority must ensure accommodation is suitable for the applicant. Location is a required consideration, including the distance from the authority’s district (for out-of-borough placements). Suitability is a holistic assessment, not a mechanical measurement of distance.
• “Have regard to” guidance (section 182): The Code of Guidance is advisory. Authorities must consider it and, if departing from it, explain why. Guidance does not compel an outcome. Local, lawful placement policies can legitimately structure decisions.
• “Collateral duty” (section 208(2) and (4) notification): The duty to notify the host authority within 14 days exists to manage inter-authority responsibilities. It is owed to the host authority, not to the applicant, and a breach will not generally undermine the suitability of an offered placement.
• Section 202 review vs section 204 appeal: The review is the internal reconsideration of suitability. The section 204 appeal is to the county court on points of law as to the lawfulness of the review decision. It is not a freestanding challenge to every procedural defect elsewhere in the process.
• DASH Risk Assessment: A multi-agency tool for assessing domestic abuse risk. Here, it recorded that Haringey was an area the applicant was willing to consider, which supported the authority’s location assessment.

Practical Guidance and Takeaways

For local housing authorities

• Maintain and apply a clear placement policy explaining when and how out-of-borough placements will be used, with criteria for proximity (“close to the district”) and allocations.
• In suitability reviews, explicitly reference:
  • Article 2 of the 2012 Order (location/distance from district);
  • Relevant Code paragraphs (17.50–17.51; 17.57 on domestic abuse); and
  • Transport links, support networks, amenities—i.e., the real-world factors that underpin suitability.
• Record the applicant’s safety concerns and any stated preferences about location; tailor the placement accordingly.
• Avoid hyper-technical distance comparisons; explain proximity in practical terms and why a given placement balances safety, support, and scarcity.
• Serve section 208 notices on time, but if late, rectify promptly; document reasons; engage with the host authority to manage any concerns.

For applicants and advisers

• When seeking a closer placement, raise and evidence it in the section 202 review: schools, medical care, carers, employment, travel burdens, specific risks on particular routes.
• Be clear if you do not want to be close to the borough boundary due to safety risk; specify acceptable areas and those to be avoided.
• Understand that a late host-notification will not usually assist a suitability appeal; focus challenges on suitability criteria and the authority’s reasoning.

What This Case Does (and Does Not) Decide

• Decides: A late section 208 notification to the host authority is a collateral breach which does not affect the suitability of accommodation and is not, without prejudice to the host authority, a ground for a section 204 appeal (paras 67–71).
• Decides: In out-of-borough placements, the relevant distance assessment is from the authority’s district, not the applicant’s former address; Code guidance is applied flexibly, with realism and regard to policy (paras 42–43, 47–51).
• Does not decide: How to resolve a case in which the host authority demonstrates prejudice from non-notification; or a case where systematic notification failures implicate wider public law concerns in separate proceedings.
• Does not decide: The later reassessment of suitability after the respondent’s household increased; that appeal was expressly not before the Court (para 17).

Conclusion

London Borough of Enfield v A sets two important markers for homelessness decision-making. First, it reinforces a flexible, policy-led approach to out-of-borough placements. Where in-borough accommodation is not reasonably practicable because of safety risks or applicant preference, authorities are not required to find the absolute closest alternative, nor to engage in exacting linear-distance calculations. They must have regard to the 2012 Order and the Code, but can and should apply them with realism—considering transport, support networks, and resource constraints—provided they can explain their reasoning.

Second, and more significantly, the Court crystallises the modern, purposive treatment of statutory procedural breaches: a late section 208 notification is a collateral error, owed to and remediable by the host authority, and does not of itself render accommodation unsuitable or ground a section 204 appeal. Absent demonstrated prejudice to the person directly affected, the validity of the suitability review stands. This recalibration curbs over-judicialisation, preserves the practicality of homelessness administration amidst acute housing scarcity, and gives clear guidance on where challenges should focus: on the lawfulness and reasoning of the suitability decision itself.

The decision therefore provides both a doctrinal clarification and a practical roadmap: apply guidance with judgment, anchor decisions in lawful policy, document the real-world factors that drive suitability, and treat collateral procedural missteps according to their statutory purpose and actual prejudice.