Facts
The Appellant was married, had two young children, and his family lived in the area of the Respondent local authority. His family were given notice to leave their privately rented accommodation. The Appellant’s older child was placed in an Academy in the Respondent’s area (“the Academy”): a private, fee-paying school, only open to those of the Islamic faith.
The Appellant’s family were evicted and provided temporary accommodation some 20 miles away (“the new area”). It was harder for the Appellant and his wife to attend work in London, and his older child to attend the Academy.
The Respondent confirmed that it owed the Appellant a main housing duty. It offered a 12-month, fixed term, assured shorthold tenancy, with a private landlord, in the new area. The Appellant requested a review of its suitability.
The Appellant argued that it was unsuitable due to the distance from his and his wife’s place of work, and the Academy. The Appellant’s preference was that his older child attend a Muslim, rather than a multi-faith, school. The Appellant’s younger child was then enrolled into the Academy.
The Respondent found that the accommodation offered was suitable. There was no legal duty to provide accommodation allowing children to attend a specific, religious school.
First appeal
The Appellant appealed on the ground that the Respondent failed to take into account the family’s rights under Article 9 of the European Convention on Human Rights (“Article 9”). Further, it was wrong to class faith education as not being a “need”. In so doing, the Respondent failed to take into account a relevant circumstance.
The Recorder found that a parent electing to send their child to a single-faith school is a manifestation of a religious belief. The question was whether the Respondent’s decision was an interference with that Article 9 right.
There was no interference. Otherwise, it would introduce a positive obligation on the Respondent to make it easier for the Appellant to place his child into a single-faith school.
Although unnecessary to dispose of the appeal, the Recorder would have found that, were there to be an interference, it would be justified in the interest of the wider community in the allocation of limited housing.
Second appeal
When granting permission to appeal, Nugee LJ doubted whether there was any flaw in the Respondent’s decision, or the judgment on first appeal, however, it raised an important point of principle that had not previously been considered.
Discussion
Peter Jackson LJ (with whom Newey LJ and Cobb J agreed) gave the leading judgment:
“An assessment of suitability calls for a decision-maker, whether a housing officer or a reviewing officer, to identify all the relevant factors and to give them the weight that seems appropriate in their professional judgement. 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.”
Instances where a decision designed to relieve homelessness amounts to a violation “will surely be very rare”. This is supported by the fact that there is very little authority in this area, and, the authority that does exist, indicates that “factors engaging a Convention right are to be given full and proper consideration, not that they must attract undue, still less predominant, weight by virtue of their Convention label.”
This appeal was focused on process (not outcome) by insisting that the decision-maker had to engage in a structured, human rights analysis, rather than an ordinary exercise of identifying, and weighing up, relevant factors.
The Recorder was right that there was no interference with Article 9. Further: “The Appellant had no right to expect that the Respondent would 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.”
Accordingly, the question of justification did not arise. Had it done so, the Appellant would have faced the “insuperable task” of proving that his faith-based preference should give him priority over other, homeless persons.
Disposal
The appeal was dismissed.
Written by Dominic Bright.