Trinity Housing Barrister Summary of Hajjaj v City of Westminster; Akhter v London Borough of Waltham Forest [2021]

Contributing to the latest edition of Housing Law Week, Trinity Social Housing Law barrister, Abigail Cheetham has prepared the following summary of the recent case of Hajjaj v City of Westminster; Akhter v London Borough of Waltham Forest  [2021] EWCA Civ 1688.

Facts

This matter concerned two appeals by Mr Hajjaj and Ms Akhter. The Claimants had applied to their local authority to obtain housing assistance. The local authorities in each case had accepted that the Claimants were homeless and eligible for assistance, therefore the Claimants were entitled to the housing duty pursuant to section 193 of the Housing Act 1996.

The local authorities provided the Claimants with private accommodation outside their respective districts, however those offers were refused. As the Claimants refused the offers of accommodation which were deemed suitable, the local authorities found that the duty pursuant to section 193(2) of the Housing Act 1996 had concluded.

The question to be determined was in what circumstances should accommodation be regarded as not ‘suitable’ to be a valid private rented sector offer within s.193(7F) of the Housing Act 1996.

Mr Hajjaj argued that there was no evidence that the criteria set out in Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2021 had been deemed not applicable, prior to offering him the accommodation.

Ms Akhter argued that the property was not suitable for her due to a range of existing defects, which would be detrimental to her mental health and her daughter’s asthma. Ms Akhter further argued that the Defendant had failed to publish a policy for the procurement of private sector property to place homeless applicants.

Relevant Law

The Housing Act 1996 – Section 208

‘so far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.’

Article 3 Homelessness (Suitability of Accommodation) (England) Order 2012 contains a list of 10 factors which, if one or more are present, would regard accommodation to be unsuitable.

Judgment

In Mr Hajjaj’s case, the local authority assumed because the accommodation was owned by landlords which they regarded as reputable, the property would be suitable for him. The local authority did not have further information regarding the physical condition of the property and there was no evidence that the property had been inspected prior to providing the offer.

In contrast, in Ms Akhter’s case, the local authority had inspected the property and found that save for some minor snagging issues, it was fit for habitation the following week. Accordingly, the decision to offer the property was not a decision based upon assumptions.

LJ Bean found that the difference between the two appeals on the facts was very striking, the local authority in Mr Hajjaj’s case did not have the kind of information available to it that the local authority had in Ms Akher’s case, such as fire safety precautions or an energy protection certificate. A local authority must be satisfied that none of the 10 bars to Article 3 suitability applies. This must be based on evidence and it must not be based upon assumptions, however satisfactory hearsay evidence may be adequate for this task.

LJ Bean found that if local housing authorities do not have requisite evidence and do not have the property inspected as the statutory Code of Guidance advises, there is a serious risk that the mischief identified in the Explanatory Memorandum to the 2012 Order will not be cured. LJ Bean did not accept that his judgment represented a judicialisation of housing allocation policy. The reliance on assumptions in Mr Hajjaj’s case was such a departure from what the Act and the 2012 Order require, that the decision was quashed and his appeal was successful.

In Ms Akhter’s appeal, due to the distinguishing circumstances between her appeal and Mr Hajjaj’s case outlined above, her appeal was dismissed.