Trinity Housing Barrister Summary of Rabah Ghaoui v London Borough of Waltham Forest [2024]

Trinity Chambers' Social Housing Law barrister, Patience Abladey has prepared the following summary of the recent Court of Appeal decision of Rabah Ghaoui v London Borough of Waltham Forest [2024] EWCA Civ 405.

This was an appeal from a decision of Recorder Deal KC relating to the role of the Human Rights Act 1998 in the context of Part VII of the Housing Act 1996, which places duties upon local authorities in relation to homeless persons.

Specifically, how human rights (Article 9, right to religion) considerations should be factored into the assessment of suitability of accommodation; in particular circumstances where the London Borough of Waltham Forest offered Mr Ghaoui accommodation which he considered to be too far away from the private fee-paying school, open only to those of the Islamic faith, which his children were enrolled at and attending.

This case appears to be the first in which Article 9 has been relied upon in respect of human rights arguments about suitability.

The Facts

Mr Ghaoui lived with his wife and their two young children. In April 2019, the family were given notice to leave their privately rented accommodation. In May 2019, Mr Ghaoui sought assistance with accommodation from London Borough of Waltham Forest (“the Council”). In September 2019, Mr Ghaoui placed his older child in a private fee-paying school (“the Academy”), open only to those of the Islamic faith. In March 2020, the family was evicted, and the Council provided temporary accommodation in the Harlow area. This was around 20 miles from the family’s previous address, which inevitably made it harder for the parents to attend their workplaces and for the child to go to the Academy.

In November 2021, the Council confirmed that it owed Mr Ghaoui a main housing duty under s.193 of the Housing Act 1996 and offered the family a 12-month fixed term assured shorthold tenancy with a private landlord, in Harlow.

Mr Ghaoui requested a review of the suitability of the offered accomodation; the main thrust of his argument was that the property was unsuitable because it was too far from the parents’ places of work and the child’s school. Additionally, Mr Ghaoui argued that it was his preference that the child should attend a Muslim school rather than a multi-faith primary school. No reference was made to human rights law.

In early September 2022, the younger child entered the nursery provision at the Academy. In September 2022, the reviewer sent to Mr Ghaoui a lengthy “minded to letter”, which in summary provided that the Council had no legal duty to provide accommodation that allowed the children to attend a specific religious school. The reviewer concluded that that they were likely to find that the offer of accommodation was suitable. In October 2022, the reviewer issued the review decision in which they found that the offered accommodation was suitable.

Mr Ghaoui appealed to the County Court pursuant to s.204 of the Housing Act 1996. Mr Ghaoui argued that the Council had failed to take into account the family’s rights under Article 9 of the European Convention on Human Rights, and that the Council was wrong to class faith education as not being a need and in doing so failed to treat it as a relevant circumstance.

The Judge dismissed the appeal and took the view that there had been no interference with Mr Ghaoui’s right to manifest his faith by choosing the Academy for his children; the review decision was not unlawful and did not contravene the requirement in the Code of Guidance that human rights implications needed to be considered. The Judge in summary stated that Mr Ghaoui should not have expected the Council to place any particular weight on his choice of school, just because that choice was motivated by faith. And “respecting someone’s article 9 freedoms does not mean elevating a parental choice into a mandate to which everything else must cede”.

In September 2023, Nugee LJ granted permission to appeal by a narrow margin. He doubted whether there was any flaw in the review decision or the judgment, but observed that the case raised an important point of principle that had not been previously considered.

Decision of the Court of Appeal

Lord Justice Peter Jackson gave the leading judgment, it was held that:

i. There was no error of law in the review decision. An assessment of suitability calls for a decision-maker, whether a housing officer or a review officer, to identify all the relevant factors and to give them the weight that seems appropriate in their professional judgment. In doing so, they are guided by the terms of the primary and secondary legislation and the code of guidance, but the decision is a practical one, rooted in the circumstances of the individual case. It is made within a legal framework and has legal consequences, but the obligation is to reach a sound decision, not to carry out a legal analysis. [34 & 35]

ii. Homelessness decisions may raise issues that engage a Convention right, but instances where a decision designed to relieve homelessness, will rarely amount to a violation. [36]

iii. The claim that the decision-maker was bound to recognise that she was dealing with a human right as such, sits in a no man’s land between a claim of violation and a claim of irrationally. It is contrary to Denbigh, by focusing on process and not outcome, and by insisting that the decision-maker has to engage in a structured human rights analysis rather than an ordinary exercise of identifying and weighing up relevant factors. [37]

iv. Mr Ghaoui had no right to expect the Council to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property. The question of justification therefore did not arise. Had it done so, Mr Ghaoui would likely have faced an insuperable task in showing that his faith-based preference should give him priority over other homeless persons. [38]

Accordingly, the appeal was unanimously dismissed.