Background

In Ghaoui v London Borough of Waltham Forest [2024] EWCA Civ 405, Mr Ghaoui, his wife and two young children lived in the London Borough of Waltham Forest. They were rendered homeless in April 2019 and Mr Ghaoui applied to the local authority for assistance with accommodation. In September 2019, he sent his older child to a fee-paying Muslim nursery in Waltham Forest [2]. The family was evicted in March 2020 and Waltham Forest LBC provided temporary accommodation in the Harlow area, some 20 miles from their previous address, which made it harder for the parents to get to work in London and for the child to go to the nursery [3]. In early September 2022, the younger child entered the same nursery [5]. Mr Ghaoui argued that in offering them accommodation 20 miles from the school, Waltham Forest was “not considering their rights”, while Waltham Forest explained at some length that it was not under any legal duty to provide accommodation that allowed the children to attend a specific religious school: in short, it was not a housing “need” [6]. The point at issue was whether or not the local authority was, in fact, under any such obligation.

In the County Court, Recorder Deal KC said that the language used in the correspondence dismissing Mr Ghaoui’s request “could be described as censorious.” She could appreciate why he might regard it as dismissive of his entitlement to send his children to a school of his choosing, but it was not relevant to the questions of law in the appeal and there had not been any interference with his Convention rights under Article 9 ECHR [10-15]. Accordingly, she dismissed the appeal [16].

In September 2023, Nugee LJ had granted permission to appeal on the grounds that the case raised an important point of principle that had not been previously considered [17]. In December 2023, the Ghaouis obtained a private sector tenancy closer to the Academy and were no longer homeless or in need of assistance from Waltham Forest [18]. Although the matter had by now become academic,  after an exchange of written submissions and consideration of the relevant authorities, Andrews LJ directed that the appeal should proceed to a hearing as raising an issue of general public importance for local authorities in discharging their homelessness duties: “what is the correct approach to determining the suitability of accommodation when the applicant’s circumstances engage rights under the ECHR, in particular Article 9 and Article 2 of the First Protocol (‘A2P1’)?” [18].

The arguments

The relevant law is Part VII Housing Act 1996, taken with the statutory guidance in the Homelessness Code of Guidance for Local Authorities [20]. In addition, local authorities must act in accordance with the Human Rights Act 1998 and Convention rights.

It was argued for Mr Ghaoui:

• that the review decision was unlawful because it did not recognise that his preference for single-faith education was a freedom protected under Article 9 and did not then go on to assess suitability on that footing (Ground 1);
• that there was an obligation in the Homelessness Code to consider the human rights implications of decisions (Ground 2); and
• that a dismissive characterisation of the preference as not being a “need” failed properly to recognise his Article 9 rights (Ground 3) [30].

For the local authority, it was argued that Article 9 had not featured in Mr Ghaoui’s representations until the first appeal. Ground 1 was fatally misconceived because the reviewing officer’s task was not an academic one about Convention rights: it was to assess the suitability of the accommodation offered – in light of Mr Ghaoui’s representations – and to reach a decision. Article 9 did not entitle a person to have a decision taken in a particular way [32]. Further, A2P1 was irrelevant: the reviewing officer was not carrying out a function “in relation to education and teaching”, so A2P1 did not apply [33].

The judgment

Housing officers and reviewing officers had to “identify all the relevant factors and to give them the weight that seems appropriate in their professional judgement”. They were to be 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” [35].

The provision in Paragraph 1.20 of the Homelessness Code that housing authorities should consider the human rights implications of their actions

“does not compel decision-makers to identify rights and potential violations, nor does it disturb the message in Denbigh [R (SB) v Governors of Denbigh High School [2006] UKHL 15] that human rights are respected through outcomes, not processes” [36].

Further:

“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 irrationality. 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].

Paragraph 1.20 of the Homelessness Code required officers to address the substance of the issue giving rise to a human right; it did not require the officer to follow a particular process [39]:

“Although the 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” [40].

All three grounds failed: appeal dismissed [41].