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Court quashes decision to accommodate disabled man 130 miles away from his support network - LB Waltham Forest v Saleh remains good law

Thursday 5 November 2020

Justine Compton of the Garden Court Housing Team represented the client, instructed by Badar Jamil from Javed Nazir Solicitors.

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S v LB Waltham Forest - Heard on 10 September 2020, handed down on 2 November 2020

HHJ Saunders at Central London County Court found the decision of LB Waltham Forest unlawful on a number of grounds.

Firstly, he held that the council was required to consider whether alternative accommodation closer to its borough was available at the date of review, applying Waltham Forest LBC v Saleh [2020] PTSR 621. The Judge rejected the council’s argument that Saleh was no longer good law because it had been based on the former wording of paragraph 17.48 of the Code of Guidance. The change in wording was found not to relieve a local authority of considering whether suitable accommodation which was nearer had become available at the date of review.

HHJ Saunders said this:

“... In my view Saleh is quite clear – and it is not affected by the change in the Homelessness Code of Guidance. The wording of the Code was not material to the reasoning in the decision in Saleh. I refer to the leading judgment of Patten LJ in the Court of Appeal and, specifically, paragraphs 32, 33 and his conclusions at 39.  

The crucial requirement of the local authority is to consider the accommodation at the date of the review, and they fell into error in not doing so – irrespective of the change in the Homelessness Code of Guidance.”

This is an important finding as two conflicting decisions on this point had been put before the judge (the judgments were of two circuit judges sitting in Central London County Court), HHJ Saunders’ reasons were in line with those of HHJ Roberts in Abdi v LB Waltham Forest (2.7.2020).  Whilst not binding, 2 decisions holding that Saleh remains good law is certainly persuasive.

Secondly, the court held that the local authority decision was unlawful because:

(a) The review officer failed to explain how S’s extensive support needs would be met given S’s significant disability and that he was wholly dependent on his wife who was not able to meet those needs.

(b) The Review decision concluded that the S’s network of friends and family can continue irrespective of his move to Wolverhampton. The Decision fails to appreciate that he requires assistance for his disability on a day- to-day basis. It would be impossible for any family or friends to maintain that level of support at such a distance. This is a more than 3 – hour trip by train, family members and friends only coming occasionally and the cost would be prohibitive.

(c) The review officer concludes that S should have adapted to his surroundings by the date of the review decision (6 months after he moved there). There are two errors of law in reaching this conclusion. Firstly, the review officer has no expertise in respect of the particular disability and the extent to which an affected person may be able to adapt to their new surroundings (particularly in the absence of a support network). Further, no advice was sought by the reviewing officer in this regard to assist her with reaching her review decision, such inquiries should have been made particularly as S’s condition represents a high level of disability.

Secondly, it was S’s evidence that he was having profound problems in carrying out day to day activities. The reviewing officer has no evidential basis to reject this evidence.

(d) The Reviewing Officer erred in rejecting the S’s evidence and reaching a conclusion about how a person affected by this condition can adapt without having made any inquiries into the issue. Any remaining doubt should have been resolved in the Appellant’s favour.

The judge concluded:

“My overall view, having considered the Reviewing Officer’s decision carefully, is that, whilst there has been some attempt to deal with the issues raised,  there appears to have been a failure to properly appreciate and investigate the consequences of his ... significant disability.”

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