Hajjaj v City of Westminster

Factual and Procedural Background

These appeals concern the use of private rented sector offers (PRSOs) by local housing authorities to discharge their housing duties under section 193(2) of the Housing Act 1996, as amended by the Localism Act 2011. The amendments permit local authorities to end their main homelessness duty by offering accommodation in the private rented sector without requiring the applicant's agreement.

The two appeals arise from separate cases. In the first, the Appellant applied for housing assistance from Westminster City Council, which accepted its duty under s.193. The Council offered the Appellant a tenancy in private rented accommodation managed by an established landlord, St Mungo's, located outside Westminster. The Appellant refused the offer, citing concerns including distance from family and caregiving responsibilities. The Council ended its housing duty accordingly.

In the second case, the Appellant was owed a housing duty by Waltham Forest Council and was offered accommodation in Harlow under a PRSO. The Appellant refused the offer due to alleged disrepair and unsuitability linked to health conditions, particularly her daughter's asthma. The Council upheld its decision that the accommodation was suitable and ended its housing duty.

Both cases proceeded through reviews and appeals in the county court, which dismissed the Appellants' challenges. Permission to appeal to the Court of Appeal was granted, focusing primarily on the lawfulness of the local authorities' review decisions regarding suitability of accommodation and, in the Akhter case, the lawfulness of discharging duty under s.208 without a procurement policy.

Legal Issues Presented

1. In what circumstances should accommodation be regarded as not "suitable" for the purposes of a valid private rented sector offer under section 193(7F) of the Housing Act 1996?
2. Whether a local housing authority may lawfully discharge their duty under section 208 of the Act by approving a PRSO located outside their district in the absence of a relevant procurement policy (raised only in the Akhter case).

Arguments of the Parties

Appellant's Arguments

• Article 3(1) of The Homelessness (Suitability of Accommodation) (England) Order 2012 sets out ten mandatory criteria that must be expressly considered before a PRSO can be deemed suitable. The local housing authority (LHA) must actively consider each criterion and make a reasoned decision.
• The absence of evidence or assessment on any of these criteria means the accommodation must be regarded as unsuitable, rendering the PRSO invalid and the s.193(2) duty continuing.
• The Code of Guidance requires an inspection or equivalent assessment to inform such decisions; assumptions without evidence are insufficient.
• The burden of proof does not shift to the applicant; the LHA must satisfy itself of suitability prior to making the offer.
• In the Akhter case, the absence of a procurement policy for private sector accommodation renders the PRSO unlawful as it prevents assessment of how the authority meets housing needs under s.208.

Respondents' Arguments

• The phrase "the local housing authority are of the view" in Article 3(1) means if the authority has no information suggesting unsuitability, it is not "of the view" that the accommodation is unsuitable, so the accommodation may be regarded as suitable.
• The extent of inquiries required depends on circumstances; established providers with reliable track records allow authorities to reasonably assume compliance with standards.
• Licensing, certificates, and tenancy agreements may be assumed to be in place or adequate where there is an ongoing relationship with the provider and no indication otherwise.
• Inspections may be carried out by trusted providers on behalf of the authority, consistent with the Code of Guidance.
• In the Akhter case, the absence of a procurement policy is not fatal; the allocation and review decisions complied with statutory duties and relevant case law, including Nzolameso v City of Westminster.
• Applicants cannot raise new grounds on appeal that were not raised during the review process.
• Court should be cautious about imposing onerous duties on housing authorities given housing shortages and resource constraints, while ensuring legality.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing PRSOs, focusing on the mandatory requirements of Article 3(1) of the 2012 Order, which lists ten circumstances rendering accommodation unsuitable. It held that the local housing authority must be positively satisfied, on evidence rather than assumption, that none of these grounds apply before approving a PRSO. The court rejected the Respondents' argument that absence of evidence equates to absence of unsuitability, emphasizing that the statutory scheme requires active consideration and evidence-based satisfaction.

The court distinguished the two cases on their facts. In the first case, Westminster had not obtained or considered sufficient evidence about the physical condition, safety, or tenancy terms of the accommodation, relying instead on assumptions about the landlord's reputation. This failure to comply with the Code of Guidance and statutory requirements rendered the PRSO unlawful, justifying quashing the review decision.

In the second case, Waltham Forest had obtained detailed inspection reports and evidence about the property’s condition and compliance with safety requirements. The reviewing officer's decision was supported by ample evidence and lawful reasoning. The court also held that the absence of a procurement policy did not render the PRSO unlawful, as the allocation policy and review decision adequately explained the accommodation strategy and compliance with s.208.

The court underscored the importance of balancing the statutory duty of legality with practical realities faced by housing authorities, including housing shortages and resource limitations, while ensuring that PRSOs meet minimum standards to protect vulnerable applicants.

Holding and Implications

The court made the following rulings:

• In the first appeal (Hajjaj v Westminster): The appeal was allowed. The court quashed the local housing authority’s review decision approving the PRSO due to failure to properly satisfy the suitability criteria under Article 3(1). This decision restores the housing duty under s.193(2) in respect of the Appellant.
• In the second appeal (Akhter v Waltham Forest): The appeal was dismissed. The court upheld the review decision confirming the suitability of the accommodation and the lawful discharge of the housing duty. The absence of a procurement policy did not invalidate the PRSO.

The direct effect is that Westminster must reconsider the suitability of the accommodation offered to the Appellant with proper evidence and assessment, while Waltham Forest’s decision stands. No new precedent was established beyond clarifying the evidential and procedural standards required for PRSO approvals under the statutory scheme and the 2012 Order.