Suitability: Of time and distance

With perfect timing, a County Court section 204 appeal judgment reaches us, on the issue of suitability of temporary accommodation. With the context of out of borough placements and the post Localism Act situation, this seemed worth considering and quoting in detail.

Arfon Abdi v LB Waltham Forest. Bow County Court 2 July 2012 [We have a copy of the judgment]

Ms A applied to Waltham Forest as homeless and Waltham accepted the full housing duty in August 2011. Ms A was in temporary accommodation. In October 2011, Ms A, who was employed at Primark in Leytonstone, took maternity leave. Her son was born in November. The leave was for a period up to a maximum of 52 weeks.

In January 2012, Waltham Forest offered Ms A the tenancy of a 2 bed flat in Erith, Kent. She was told to inspect and sign for the property the next day. It was a private sector tenancy with a term of 3 years. Ms A rejected the property, giving a number of reasons, including its location. Her solicitors then requested a review, pointing out that:

“Our client instructs us that the property is in Kent. Our client instructs us that she is currently on maternity leave and that she is going back to work in October 2012 and that her job is in Leytonstone. Our client instructs us that her mother and her auntie who live in Walthamstow are going to be looking after the baby whilst she is at work. Our client instructs us that it would take her 2 hours each way to get to and from work.
Our client instructs us that when she starts to work she will have to pay more towards the rent herself and that she would not be able to afford to pay the rent and that she would struggle financially.
Our client instructs us that she is a single mother and that she does not have a support network in Kent as all of her family and friends are in Waltham Forest and that she does not have anyone in Kent who could assist with the baby particularly in an emergency. Our client instructs us that there is also no local mosque in the area or anyone from her community. Our client instructs us that the area she lives in is very isolated, which is very worrying as she is a single woman living on her own with a small baby”.

The review upheld the decision that the property was suitable. On paying for the property when Ms A returned to work, the review simply said:

If she knows [how much she would earn] she can check who much she will have to pay online. Income levels are set by the Government and allow essential expenses (including child care costs) before setting a figure for the amount an individual has to pay. Since she is eligible for Housing Benefit and this is allowable on the full rent of the property, I do not accept that the rent of this property is unaffordable.

On the various concerns about the location of the property, the review letter stated:

Reviews on the basis of area have to be considered against the availability of properties. There is a considerable shortage of all sorts of property within the borough. The Council has a waiting list of 21,000 applicants, about 1000 of them homeless. Last year only about 1000 permanent properties became available. The Council takes the view that homeless applicants will not jump to the top of the housing queue with the result that people who are overcrowded or badly housed for medical or social reasons move down the list. Therefore the Council finds temporary properties for those on the homeless list and allows them to bid for vacant properties with whatever priority they have.

Temporary accommodation comes in various forms and in different areas. The Council aim is to make offers that are as secure as possible and within the borough. Homeless applicants may start their period of homelessness in a hostel or other nightly paid accommodation whilst their case is investigated and approved and whilst more permanent accommodation is sought. The PSL scheme involves the Council securing properties on three year renewable tenancies and offering them to homeless applicants in lieu of any more permanent solution being available.

Until recently these PSL tenancies were within the borough. The demand for properties and changes in housing benefit rules has led to the Council having to look outside the borough and properties are now being used in areas like Romford and Luton. Shortly, properties in Birmingham and Margate are to be used. Such areas may seem and are a long way from Waltham Forest but they are an unfortunate result of the lack of affordable accommodation. Applicants have the option of the Rent Deposit Scheme if they wish to remain within the borough. The Council would expect PSL tenants to transfer essential services such as GP and schools to their new address and this is especially necessary for those housed out of the borough.

In this case the Appellant has a job to return to in Leytonstone and child care to support her in doing so. Erith is in the London Borough of Bexleyheath and is about 18 miles by road from this office. The river Thames prevents a direct journey and transport links go either through Stratford or Central London. Erith station is very close to the property. I accept that the journey to Waltham Forest from Erith would take about 2 hours each way and that the Appellant would be liable for the cost of travelling.

The Appellant is on maternity leave from Primark. This is a national store and she can ask to work closer to Erith. For example, there is a store at Bexleyheath that is 31/2 miles from Cricketers Close. This would mean her finding child care in that area. According to the internet there are Islamic Centres 2, 4 and 6 miles from Erith Town Centre, which suggests that there are a number of Muslims in the area.

I need to balance the Appellant’s concerns against the shortage of accommodation in Waltham Forest. Given that shortage, I do not consider this offer to be unreasonable. The Appellant has several months to discuss her return to work and arrange suitable child care. If she does return to Primark in Leytonstone the travelling involved, though difficult and time-consuming, is not impossible, specially for a part-time job. She can also investigate the Rent Deposit Scheme, without prejudice to her current tenancy which may allow her to find accommodation within the borough, as this scheme allows her to choose the area in which she wishes to live.

The letter omitted any mention of the right to appeal. Ms A’s solicitors pointed this out and made further representations, that Ms A was returning to work in July 2012 and that she would be relying on her mother for childcare when she returned, meaning a 1 hour 45 minute trip from the proposed property to her mother’s then a further 45 minute trip to work, so a 2 hour 25 minute trip twice a day, mostly with a baby. Ms A had no idea whether a transfer to another branch of Primark would be possible, but she would still be reliant on her mother for childcare, so the travel would remain. The travel costs would be about £119 per month, which she could not afford once she started back at work.

The amended review letter simply stated in response:

You ask whether the offer will be unsuitable from July when the Appellant is due to return to work. As the review states, the decision is that the offer is suitable now and at the time she returns to work. The shortage of accommodation means that such difficult choices have to be made.

Ms A issued a s.204 appeal on grounds that:

The Respondent failed to make sufficient enquiry and failed to take relevant matters into account;
The Respondent fettered its discretion and/or applied the wrong test; and
The Respondent’s decision is Wednesbury unreasonable.

Ms A asked the Court to substitute a decision that the property was not suitable.

Waltham defended and said even if it found for Ms A, the Court should just quash the decision and leave Waltham to make a fresh one.

The Court noted the suitability requirements under s.193 and s.206, noting also that Ravichandran v Lewisham LBC [2010] EWCA Civ 755 [our report] upheld that suitability may be quite different depending whether accommodation was intended to be temporary or permanent.

On failure to make sufficient enquiry and failure to take relevant matters into account, Ms A argued:

that the Respondent failed to take into account the fact that the Appellant would be travelling for about 2 hours each way with a baby and with at least 3 interchanges each way.

She asserts that the housing officer (“HO”) failed to make sufficient enquires about: (a) whether employment would be available at a Primark local to Erith; and (b) whether child care would be affordable. It was not reasonable to assume that a different job would be available or that child care would be affordable. The HO made no enquiries about the Appellant’s likely income and expenditure when she returned to work.

On the evidence, about 25% of Ms A’s monthly earnings when she returned to work would be taken up by travel costs. The review officer had failed to connect finances and location of the property when the two were linked.

Waltham argued:

the decision does not say that the accommodation would be suitable if the Appellant finds a job in Erith or finds alternative child care.” The journey is not too long, and there are alternatives available for the Appellant if she chooses to take them up. The decision about whether the journey is too long is for the authority to take, balancing the Appellant’s needs against the local housing situation. In the meantime the Appellant has the safety net which this legislation is intended to provide her.

During the hearing, Waltham made clear that it considered the decision made by the first review letter and had taken no account of the further submissions and did not have to. Ms A submitted that this made the decision even more flawed:

Homelessness (Suitability of Accommodation) Order 1996 which specifies that in determining whether it would be reasonable for a person to occupy accommodation that is considered suitable for him the authority must take into account whether the accommodation is affordable by her and, in particular, must take account of her financial resources and the costs in respect of the accommodation “including…her reasonable living expenses”. Plainly, submitted Miss Henderson [for Ms A], those expenses must include the cost of travel and/or childcare.

On the issue of alternatives – work, childcare nearer the property – Ms A argued:

that whilst it is plain from the case of Sacupima (above) that alternatives can render accommodation suitable, there must be real evidence that the alternatives are available; here there is mere speculation. There really are no alternatives for this Appellant, as she cannot afford them. “She can seek an alternative job” cannot be an answer or every employed applicant would be at risk of being told to look for another job. There is no reference to the affordability of alternative child care.

In response, Waltham

retreated to the difficulty, for the Appellant, of the test I must apply [the “formidable task” of deciding the authority’s decision was Wednesbury unreasonable, R v Islington LBC ex parte Thomas [1997] 30 HLR 111], to the real difficulty of the situation with which the housing authority is faced, and to the fact that an authority is not expected to carry out any or every possible enquiry, only those it considers reasonable [citing R v Royal Borough of Kensington and Chelsea ex p Bayani 22 HLR 406].

On fettering of discretion or applying the wrong test, Ms A argued that the review officer had imposed too high a test on the travel distance and time. The officer had set a test of whether the travel was ‘impossible’. THe journey was possible, but no reasonable review officer could consider a journey of 2.25 hours each way a day, with 3 changes, 5 days a week, to mean accommodation was suitable. The question was whether it was reasonable to expect Ms A to make this journey, not whether it was possible to do so. The review letter did not go beyond the possibility of making the journey to consider whether it was reasonable for Ms A to do so.

In response, Waltham argued:

that this criticism is unfair, and focuses on an isolated phrase when the decision should be looked at as a whole. “It is clear from looking at the decision as a whole that the Respondent had considered whether the accommodation was suitable for the Appellant” and the Respondent emphasises the overwhelming difficulties facing the Respondent in finding affordable accommodation in its own area.

In any event, this is temporary accommodation and the Appellant “can reasonably be expected to put up with a long journey for the short period of time involved if she does not want to move jobs”. It is, I note accepted that this is accommodation available for three years. The Appellant submits that this can under no circumstances be considered a “short period of time”.

On Wednesbury unreasonableness, Ms A argued, considering suitability from the viewpoint of Ms A, as Waltham was bound to do:

In all the circumstances including the distance from her job, distance from her family and the financial resources available to her no reasonable authority could conclude that this accommodation was suitable.

Waltham argued that:

The local authority is best placed to know the strains on its resources and rents in the area. It has provided the Appellant with a safety net; it is not required to provide perfection.

Further, Waltham argued, Williams v Birmingham City Council [2008] HLR 4 was a case in which the Court of Appeal had considered that a longer journey did not make the property unsuitable. However, Ms A argued that in that case the journey was not before the court, the issue was whether the journey could be avoided by the applicant’s daughter changing school where there was a statutory right to a place in a closer school.

The Court held:

On failure to make sufficient enquiries/take relevant matters into account:

Putting aside for a moment the “softer” issues relied on by the Appellant in her initial representations on suitability, there are three absolutely central “hard” factual issues: can [and should] the Appellant find work near to Erith; if not, just how feasible, realistic or reasonable it is to expect her to undertake the journey to Leytonstone with her baby and can she afford it; if so, can she afford to pay for the child care that her family would have provided in Walthamstow, thereby enabling her to undertake the job closer to the property?

On those issues: the Respondent failed to enquire into the availability of work in a Primark store near Erith; it failed to enquire into the Appellant’s earnings; it failed to enquire into the cost of the journey and, if it knew that cost [as Miss Rowlands submitted it did know about the cost of travel since this was public knowledge], whether the Appellant could afford it on her earnings; and it failed to enquire about the availability and cost of childcare near Erith and, therefore, whether the Appellant could afford it. On the issue of availability of work in the Erith area, I find that it is unreasonable for the Respondent simply to assume, in these times of financial hardship nationwide, that the Appellant would be able to find a job in the local branch of Primark “for the asking”. Miss Rowlands  [for Waltham] submitted that the Respondent was not under a duty to look into the cost of childcare as the Appellant had not specifically raised this in the first representations letter. That argument is flawed, however, both because the letter had referred to the fact that the Appellant would struggle financially and because the Respondent had nonetheless asserted positively, in explaining its decision, that the Appellant actually would be able to find [and, it must follow, pay for] child care locally to the property.

I accept the Appellant’s submission that the Respondent failed to take relevant matters into account. It failed to take into account the fact that the Appellant would be travelling for two hours each way with a baby and with at least 3 interchanges each way. Had it taken into account the fact that the Appellant would be travelling with her baby or that there were at least 3 interchanges each way then (a) it should have said so and (b) it should have explained how, in those circumstances, the journey remained one that it was reasonable to expect the Appellant to make. Miss Rowlands [for Waltham] submitted that “the decision about whether the journey is too long is for the authority to take” however if that decision appears to be one taken in the face of the evidence then the Respondent must explain the basis of it. There is no such explanation in the Decision letter.

Further, given the failure of its enquiries, the Respondent failed to take into account either the possibility that the Appellant would not be able to find work close to Erith, or that she might be unable to afford the travel or that she might, if she changed jobs, be unable to afford to pay for childcare on her low paid part time income.

Waltham had failed to consider affordability, making a decision that would be a substantial disincentive for Ms A to return to work.

While alternatives can render a property suitable (Work, childcare etc.) there must be some evidence that these alternatives exist, rather than the ‘speculation at best’ that Waltham had engaged in.

Further “deciding to opt for alternative accommodation in private sector cannot amount to an alternative on which a local authority under a “full” housing duty could rely to render property suitable. If so, then the legislation would create no meaningful duty on a housing authority in any case.”

On fettered discretion, it was right that Waltham had applied the wrong test on the travel time. There was no basis for the review officer deciding the journey was feasible save for finding it was ‘not impossible’.

In this, as in relation to the other grounds of the Appellant’s appeal, the Respondent falls back on the “overwhelming difficulties that the Respondent faces in finding affordable accommodation within its own area”. That does not explain how or why the Respondent considered this journey to be reasonable or appropriate for this applicant.

Waltham’s assertion that the accommodation was temporary did not get them anywhere, it was for a period of 3 years, not a few days or weeks. Any submission that Ms A would only make the journey because she did not want to move jobs was, as with the assertion that another job would be available, based on pure speculation.

On Wednesbury unreasonableness, while the Court fully accepted the overwhelming difficulties facing Waltham in carrying out its duties to those who needed housing:

the Respondent fell into the error of allowing those difficulties to be determinative of its decision in this case. In so doing it failed to consider the suitability of this property for this applicant.

It was, I find, plainly unreasonable – in the Wednesbury sense of the word – for the Respondent to conclude that this young mother, who will be returning imminently to low paid part time employment, can either undertake this arduous journey 10 times a week for at least three years and pay the travel costs from her earnings or find alternative low paid employment locally and afford to pay commercially, from those earnings, for the childcare which her family would have provided free in Walthamstow. So focussed was the HO on the difficulties facing the authority in finding suitable accommodation locally that it simply did not think through the reality of the property for this applicant in this case. In reality its decision was a huge disincentive for this woman to return to work, when the authority should be trying to encourage and support a person who actually wants to work – rather than to claim benefit – to be able to do so.

On relief, while it was unusual to go beyond quashing a decision, to be remade by the Authority, it was significant here that Waltham had had further submissions and more detail in the second letter from Ms A’s solicitors and simply re-asserted its decision. Further, as the decision fell not only on a failure to make enquiries, but full Wednesbury unreasonableness. The conclusion had to be that no reasonable Authority could consider this accommodation to be suitable for Ms A.

For that reason the decision was to be varied to a decision that the property was not suitable and there was a continuing s.193 duty.

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Posted in FLW case note, Homeless, Housing law - All and tagged , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

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