The facts in Nzolameso v Westminster CC are pretty unremarkable, but the effects of the Court of Appeal’s judgement are likely to reverberate through every new homelessness application, especially in the London area.
Ms N is a parent of five children, who were evicted from their 4 bedroom house in Westminster in November 2012 following imposition of the housing benefit cap. WCC accepted the full housing duty towards Ms N and offered a five bedroom house as temporary accommodation in Bletchley, near Milton Keynes (approximately 50 miles away from Westminster). The Council considered this offer reasonable given the severe shortage of both temporary and permanent accommodation within the borough. Ms N refused it, stating that it would disrupt the children’s schooling and that she would be deprived of the important emotional and practical support of her friends in the Westminster area, with whom she had built up links over 4 years.
Ms N argued in the County Court that WCC failed to consider whether there was anything closer to Westminster from the available housing stock that might be suitable for Ms N and her family, in order to bring it into line with its duty under s.208 of the Housing Act 1996. HHJ Hornby nevertheless dismissed that appeal and the CoA heard the second appeal on 29/9/2014.
Here, Ms N submitted that by asking itself the wrong question, namely whether it was reasonable for Westminster to have offered accommodation out of borough, the Council had short-circuited any enquiries that might have been made into the available housing stock (including stock on the open market) to make it more reasonably practicable for Ms N to accept. WCC’s response was that the only relevant question for the reviewing officer was whether the offered property met her needs and that the Council’s resources and forecasts of likely future demand were relevant when deciding whether an offer was reasonably practical (relying on R (Calgin) v Enfield LBC).
The Court found that to expect a local authority to search stock within its own and neighbouring boroughs until a suitable match was found, without regard to the needs of present or potential applicants, placed too heavy and disproportionate a burden on its resources. This also meant that there was no requirement on the reviewing officer to explain why this property had been offered in preference to any other property that might be available, nor was there any reason to believe that the Council’s resources had changed substantially between the dates of the initial and the review decision. The appeal was therefore dismissed.
Comment
While at the outset I noted the impact this decision was likely to have on future discharge decisions, the judgement leaves a number of unsatisfactory loose ends. For example, paragraph 10 of the judgement reads (in connection with s.208):
Accordingly, although the section reflects a desire to ensure that the homeless are accommodated within the local authority area in which they have been living, it recognises by its very terms that authorities cannot always achieve that objective. The question raised by this appeal is what factors can properly be taken into consideration by a local housing authority when deciding whether it is reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that, as in the present case, the accommodation may be of no more than a temporary nature.
Does this mean that when the issue is discharge by way of permanent accommodation, we can expect Courts to be more critical of a decision to locate out of borough? I’m afraid I do not follow the logic of such an inference. If an applicant is expected to establish roots in another (distant) area, it is more reasonably practical to do so if that placement is not temporary. Surely therefore in cases of discharge under s.193(7), the existence of prior links with the borough should be less pre-eminent?
Secondly, local authorities cannot discharge their duty in a routine and unthinking manner (paragraph 20), which seems very difficult to prove when reviewing officers can be assumed to have had regard to their own resources, projections, forecasts etc. when producing their decisions.
As a footnote, we have been shown a ‘companion’ decision of the same Court in Hegab v Westminster CC (B5/2014/1528 (A)). The issues on appeal were similar, except that Ms Hegab was offered accommodation in Newham. However, the appeal became academic following a burglary at the property, as a result of which the applicant was offered accommodation in Redbridge.
This is worrying.
The effects of the LHA cap are certainly an issue in London given the only suitable (ie affordable) provision would be in social housing for a case such as this. The efficacy of the homelessness guidance and law has not kept up with the impact of this welfare reform (sic) policy.
The proposal to reduce the overall benefit cap will exacerbate that position massively as it will apply to every area of he country, a national not a London problem with the proposed £440 pw cap.
The 1 parent 4 child household receive £356 per week on other welfare benefits thus leaving a maximum housing benefit of £84 per week even in Hull (lowest rent area) and so the suitability of an offer is markedly called into question as where the hell can suitable housing be found for any similar household for that!
The overall benefit cap leaves homeless legislation and guidance in a huge mess and renders ‘suitability’ meaningless
This was a regrettable example of “hard cases make bad law”: the court has read down the statute to get WCC out of a tight spot, depriving s.208 of its intended effect.
For Parliament must have intended something more concrete than what this judgment leaves; why else would this provision requiring placements to be in-district have been given its own separate statutory section, framed in terms of “a LHA shall” if it was not to afford more protection than would already have been in place from the general suitability requirements?
Would taking the provision seriously place LHAs in an “impossible position”? Surely not necessarily so. Most LHAs would cope without undue difficulty, with some forward planning which is what this provision properly understood should have required of them. Although it would have been more onerous for some than others, it would not have been impossible. WCC’s position had only become impossible because they specifically planned their affairs on the basis that s.208 is a piece of paper beating the air, and in doing so they have passed on their burden to their homeless, rather than absorbing it as they should have done as a corolloray of being a fashionable borough.
the Court of Appeal has significantly undermined the force of s.208 out of misplaced piity for WCC’s plight, Ms Nzolameso’s notwithstanding.
Permission granted by Supreme Court 03/02/2015
Appeal to Supreme Court allowed immediately 17 March 2015 – reasons to follows. (Ms N is homeless and her children in care after the Court of Appeal judgment).
https://www.supremecourt.uk/cases/uksc-2014-0275.html