Homelessness and human rights

What is the correct approach to determining the suitability of accommodation when the applicant’s circumstances engage rights under the European Convention on Human Rights (ECHR)? This is an issue of general public importance affecting local authorities discharging homelessness duties under Part VII of the Housing Act 1996. Who says? Andrews LJ, when she directed that an appeal from Mr Rabah Ghaoui should proceed to a hearing.

This concerned Article 9 of the ECHR (freedom of thought, conscience and religion) and the right to education in Article 2 of the First Protocol to the ECHR (FPA2) in the context of a local authority’s homelessness responsibilities. Article 9 (among other things) confers a qualified right to manifest one’s religion or beliefs and FPA2 requires the state to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. On 24 April, Peter Jackson LJ (with whom Newey and Cobb LJJ agreed) gave the Court of Appeal’s judgment in Ghaoui v Waltham Forest London Borough Council [2024] EWCA Civ 405.

The appellant, a married man with two young children, had (per sections 202 to 204A of the 1996 act) sought a review of the suitability of accommodation offered by the local authority under section 193 of the 1996 act (duty to persons with priority need who are not homeless intentionally). His central point was that the property was unsuitable by reason of its distance from the parents’ places of work and the child’s school since the appellant preferred his child to attend a Muslim school rather than a multi-faith primary school. The appellant’s solicitors had set out the relevant legal framework, without making any reference to human rights law.

The review found that there was no legal duty for the housing authority to discharge its homeless duty by providing accommodation to meet applicants’ wishes or desires. The appellant’s preference for the children to attend a Muslim school in a particular location was not an essential need for the council so as to breach the authority’s obligations towards the welfare of the children under section 11 of the Children Act 2004 (arrangements to safeguard and promote welfare) because of the travelling and waiting involved in getting his children to and from school. It was not an educational requirement that the appellant’s children attend a Muslim school for the state has a functioning educational system to ensure that all school-age children under 18 have free access to education. However, the council officer’s letter was somewhat censorious, including (among other things) that: ‘If you had given the children’s welfare priority consideration, any reasonable parent would have relocated their children to a school near their residence.’

On appeal to the county court under section 204 of the 1996 act, Recorder Deal KC, while criticising the council officer’s choice of language, found that there had been no interference with the appellant’s right to manifest his faith by choosing the Muslim school for his children. For: ‘Respecting someone’s Article 9 freedoms does not mean elevating a parental choice into a mandate to which everything else must cede’. The recorder consequently dismissed the appeal and confirmed the review decision. The Court of Appeal concluded that there was no error of law in the review decision and that the recorder was right to say so.

However, the instant appeal concerned the important issue of the correct approach to determining accommodation suitability when ECHR rights are engaged. The Court of Appeal referred to Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925, where Auld LJ had observed that in light of Article 8 of ECHR (right to respect for private and family life), the suitability of offered accommodation in a homeless case requires ‘a balancing of countervailing factors where they exist’. The court also noted the remarks of Lord Hoffmann in R (SB) v Governors of Denbigh High School [2006] UKHL 15, including that ‘Article 9 is concerned with substance, not procedure’ and ‘confers no right to have a decision made in any particular way’. And (per Lord Bingham in that case) ‘what matters in any case is the practical outcome, not the quality of the decision-making process that led to it’.

In the instant Ghaoui case, the court said that ‘an assessment of suitability calls for a decision-maker, whether housing officer or reviewing officer, to identify all the relevant factors and to give them the weight that seems appropriate in their professional judgement’. And although, while doing so, they will be guided by the terms of legislation and the Homelessness Code of Guidance for Local Authorities, ‘the decision is a practical one, rooted in the circumstances of the individual case’. For, while made within a legal framework and with legal consequences, the authority’s obligation is to reach a sound decision, not to carry out a legal analysis. And although factors engaging a convention right are to be given full and proper consideration, this does not require ‘undue, still less predominant weight by virtue of their convention label’.

The recorder was therefore ‘entitled, indeed right’ to conclude there that had been no interference with Article 9. For: ‘The appellant had no right to expect the respondent 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’. And although the reviewing officer did not accept that single-faith education was a need, she paid considerable attention to the schooling issue and reached a decision about suitability that was plainly open to her.

Nicholas Dobson writes on local government, public law and governance