Section 204a Housing Act appeal - local authority failed to properly consider limb three of the Mohammed test

Friday 9 September 2016

SN v LB Waltham Forest  5 September 2016 - Central London County Court - HHJ Hand QC Justine Compton of Garden Court Chambers represented the Appellant.

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The Appellant had been found intentionally homeless for a second time (following a previous successful appeal before HHJ Luba QC) and had filed an appeal pursuant to s.204 HA 1996.

The Appellant has two young children, one of whom suffers chronic constipation and daily vomiting.  The Appellant suffers from high blood pressure.

In its three successive decisions (each one considering further information provided by the Appellant), the council refused to accommodate the Appellant pending appeal.

The focus of the appeal was a narrow one namely whether the council had properly considered limb 3 of the Mohammed test, namely the personal circumstances of the Appellant and more particularly the consequences of a refusal to accommodate.

The council argued firstly that the merits part of the balancing act ('limb 1') was the overriding consideration and without merits the other factors were unlikely to outweigh an unmeritorious case.

The council further argued that it had recorded the personal circumstances and considered the medical evidence adequately so as to comply with the Mohammed test and there was no need to go further and consider endless hypothetical scenarios.

HHJ Hand QC rejected these arguments and found that:

  1. There was no hierarchy in the Mohammed test, personal circumstances were capable of tipping the balance in an appellants favour regardless of the merits.
  2. Local Authorities rarely accept that there are merits in an appeal and therefore the position urged upon him by the council would mean most pursuing an appeal would fall at the 1st Mohammed hurdle, which couldn't be right.
  3. All 3 decisions were unlawful as the consequences of a negative decision had not been properly considered despite the facts having been set out and reference being made to the evidence.
  4. Whilst a Reviewing Officer did not have to write chapter and verse,  it had to properly consider what the real effect of its decision on this Appellant with her particular circumstances would be.

The Judge was also satisfied that substantial prejudice to the Appellant's ability to pursue her appeal would be caused and so made a mandatory order under s.204(4)(6).  The Judge accepted that where there were issues of credibility in the main appeal, and where the Appellant may have to deal with her children going into care - which would affect her ability to cope, interfere with her benefits and impact on her public funding certificate - the test was met.

Justine Compton of the Garden Court Chambers Housing Team represented the Appellant, instructed by Tanya Barrett of Ty Arian Solicitors.

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