As for the specifics, do not forget to credit the grimy miners at this particular coal-face: especially Messrs Nabi and Nicol, whose talents in combination with CLP’s determination achieved the all-important first instance victory.

This is thoroughly depressing background and a reminder, if one were needed, of the importance of a functioning legal aid system. I agree that a further appeal to the Lords looks pretty desperate. I would hope, but with less confidence, that lobbying for a change in the law would also be unsuccessful. That is a worrying step.

Good luck with what I take to be your own struggles with the Housing Department.

Nearly Legal

Anyone with a rudimentary understanding of the homelessness legislation understands that if accommodation is so poor that it would not be reasonable for the occupants to continue to occupy it they are, notwithstanding the roof over their head, statutory homeless (s.175(3)). Consequently, a duty arises to secure that accommodation is available for the person’s occupation (s.193(2)).

But when does the duty arise? Well, when reading Part 7 of the 1996 Act I’ve never happened upon the concept that ‘secure that accommodation is available’ means homeless persons can stew for months on end in the very accommodation that was so deficient it caused their homelessness before alternative temporary accommodation is provided. It is not, after all, treated as accommodation in the statutory sense. It would surely be surprising if this was a difficult concept for homelessness managers to grasp.

This state of affairs would perhaps not be so worrying but for the fact that Birmingham is the largest local authority with the largest number of homelessness applications in the UK. The homelessness question under scrutiny in Aweys turns on the symmetry in the way in which ‘accommodation’ is defined throughout the legislative scheme, including sections 175(3), and 193(2), as well as s.191(1). Accommodation, if it not reasonable to continue to occupy, can not be treated as available for occupation by the applicant, nor can it by definition be suitable accommodation (see paras 38 to 39 of the judgment).

These are basic principles underlying the whole operation of Part 7. They have been settled for over a decade, and are understood and applied on a daily basis by any competent homelessness officer.

I agree that Birmingham’s job in meeting housing duties is extremely difficult and being made more so by central government. (It is worth noting in passing however that Birmingham continues to enjoy – notwithstanding inner city clearance programmes and the reduction in stock through the right to buy – a relatively large stock, and half-decent turnover of council and housing association vacancies, when compared to the inner London boroughs). But are we to believe that these basis concepts are not understood by council members and senior homelessness staff in the largest housing authority in England?

Many of those working with the homeless in Birmingham have long known the problems experienced by the homeless in the city: systematic gate-keeping through the discredited Home Options scheme, poor decision making, and unlawful allocations perhaps among the most notable problems.

It is interesting that Mike reports a reduction in problems in the period since the first instance Aweys judgment. Community Law Partnership and Mr Luba QC certainly deserve congratulations for dispatching the Aweys appeal from whence it came. Yet those working with the homeless in the second city are left with genuine doubts about the ability of Birmingham Housing Department to give a lead on tackling homelessness.

This is after all the department which not so long ago was awarded the dubious honour of a nil point Audit Commission assessment, and is currently headed by the charming Tory Councilor Lines. Not for John Lines caring sharing Conservatism. This enlightened soul, previously convicted of assaulting his neighbour with a wooden plank, was forced this week into issuing an apology after he described asylum seekers as scumbags.

http://icbirmingham.icnetwork.co.uk/birminghampost/news/2008/02/06/tory-apologises-for-asylum-scumbag-remark-65233-20442566/.

So what is the answer to transforming the fortunes of those at the sharp end of the housing crisis in the country’s second city? Well, current events at the council do not bode well. The ruling Tory/Liberal coalition believes the way to comply with equal pay legislation is to downgrade staff and cut salaries, while refusing to give women workers the full six years’ back pay to which they are entitled. Homelessness officers stand to lose over £2,000 per year under an imposed contract, whilst the very homelessness managers that wasted over £170,000 on court costs last year get a pay rise. Thousands of council staff, including housing officers, were forced last week into taking strike action. Pay cuts as a catalyst for excellence anyone?

It beggars belief that Birmingham are seeking leave to appeal to the Lords, in the absence of any cogent legal argument. There is now talk of Birmingham lobbying the government for a change in the law. This reinforces the impression that their motives are not born out of ignorance of the law at all, but rather a desire to tackle their administrative difficulties by seeking to avoid their responsibilities to the most vulnerable. Surely the hefty legal costs incurred by Birmingham would be better spent on securing decent accommodation for the homeless and on ending the threat of pay cuts for front line housing staff.

But doing what we can now, through JRs or other proceedings, to mitigate the bad/unlawful current treatment of tenants and homeless surely does not mean that any of us have lost sight of the broader question of policy, in fact quite the reverse. We know both the scale and the effects of the problems.

I can’t think of a single tenant-side housing lawyer I’ve met who believes that their practice is actually a solution, rather than, at best, an amelioration. But, at a point where some councils are seeking to shift the burden of the problems they face onto the most vulnerable, yes, this is a victory (however limited and temporary) worth being pleased about.

However, that position is not inconsistent with also having sympathy for local housing authorities. Is anyone really surprised that - faced with demand that they cannot possibly hope to meet - some metropolitan authorities make poor (and unlawful) decisions? Of course resource constraints cannot excuse that behaviour (nor do I seek to do so) and, yes, I recognise (and deplore the fact) that resources arguments are oftened misused as a justification for poor or unlawful decisions.

What I want is a situation where we (i.e., housing lawyers) don’t have to make duty Judge applications and don’t have to JR local authorities. Until local housing authorities are allowed to replenish their housing stock, this simply will not happen.

Do either of you believe that there won’t be another high profile case such as Aweys 5 years or so from now? Of course there will be, because the pressure on housing authorities will continue to grow and demand will continue to outstrip supply. The real remedy is not JR victory after JR victory, but a change in government policy.

And, with all that, congratulations to Mike on your victory!

J

There is absolutely no doubt that Authorities are desperately short of decent housing stock, particularly at the large 3 or 4 bed end. It is government policy that has created this situation and it is a government issue to solve. I don’t think anybody lacks sympathy for the situation that some local authorities find themselves in.

However, as far as housing lawyers and the homeless are concerned, this is a judgment to cheer to the extent that Birmingham was a) trying to avoid its housing duty and then b) trying to create a hierarchy of housing need amongst the homeless to further delay fulfilling that duty in some cases. Inasmuch as this case presents a clear statement of the duty, it is a good thing for the homeless and useful for housing lawyers.

To make a further appeal would surely be jaw-droppingly ill-considered.

Nearly Legal

Mike McIlvaney,
Community Law Partnership.