Homelessness: Private rented sector offers and suitability

November 17, 2021

Clare Cullen considers the case of Hajjaj v City of Westminister; Akhter v Waltham Forest London Borough Council [2021] EWCA Civ 1688 concerning the suitability of private rented sector accommodation intended to bring the main homelessness duty to an end.

The decision is important for local authorities and for homeless applicants as it demonstrates the need for local authorities to have evidence concerning the matters set out in Article 3, The Homelessness (Suitability of Accommodation) (England) Order 2012 when making private rented sector offers.

Also the case confirms that a private rented sector offer outside of district can be lawful if a local authority does not have a procurement policy.

Background facts

Section 208, Housing Act 1996 provides that “so far as reasonably practicable a local housing authority shall…secure that accommodation is available….in their district.”

In Nzolameso v City of Westminster [2015] UKSC 22; [2015] H.L.R. 2, Lady Hale considered that local authorities should ideally have a policy for procuring temporary accommodation and a policy for allocating temporary accommodation.

Article 3, Homelessness (Suitability of Accommodation)(England) Order 2012 sets out 10 matters which, if satisfied, would mean that private rented sector accommodation is unsuitable. This includes where the authority is satisfied that the accommodation is not in a reasonable physical condition.

In both cases, Mr H and Ms A applied as homeless and the authorities accepted that they were owed the main homelessness duty to secure suitable accommodation under section 193(2), Housing Act 1996.

Mr H and Ms A were both offered private rented sector accommodation which was located outside of the authorities’ districts. Mr H and Ms A both refused their offers of accommodation and were notified that the s.193(2) duty had come to an end because of their refusals.

Mr H and Ms A both requested reviews. Subsequent appeals to the county court were dismissed.

In Mr H’s case, there was no evidence concerning the matters set out in Article 3. However the review officer was satisfied that sufficient regard was had to Article 3.

In Ms A’s case, there was evidence concerning the matters set out in Article 3. The review officer relied upon a final inspection certificate by a management company which included a snagging list and confirmed the property was ready for occupation. The review officer considered that repairs could have been requested if necessary.

In Ms A’s case, it was accepted that the authority did not have a procurement policy. Therefore, it was contended that the private rented sector offer was unlawful.

Outcome

The Court of Appeal dismissed Ms A’s appeal but allowed Mr H’s appeal.

It was held that an authority must be satisfied that none of the 10 bars to suitability in Article 3 applies. This decision must be based on evidence rather than assumptions. The only possible exception related to Article 3(1)(j) concerning the provision of a written tenancy agreement but the point was not critical to either appeal.

In Mr H’s case, the authority proceeded on the basis of assumptions. Therefore the appeal was allowed and the review decision quashed.

In Ms A’s case, the authority did have evidence concerning the 10 matters set out in Article 3 (save for the tenancy agreement) and the review officer was entitled to find that the property was suitable.

The Court of Appeal considered it was unnecessary for a local authority to have a procurement policy in place for a private rented sector offer to be lawful. There was no evidence that the allocation policy had been breached.

What does the decision mean for local authorities and for homeless applicants?

A local authority should be satisfied that none of the 10 bars to suitability set out in Article 3 arise when making a private rented sector offer of accommodation. In doing so, they should rely on evidence and not proceed on the basis of assumptions.

Homeless applicants may be able to challenge a decision as to suitability of private rented sector accommodation if an authority has failed to obtain evidence concerning these matters.

Although the Supreme Court in Nzolameso recommended that local authorities have a procurement policy, a failure to have one is unlikely to mean that a private rented sector offer outside a local authority’s district is unlawful.