With remarkable speed, the Supreme Court has handed down its judgement in Nzolameso v Westminster City Council , having announced immediately after the hearing on 17/3/2015 that the appeal would be allowed, with reasons to follow.
The facts of the case can be found in our earlier post on the Court of Appeal judgement (although, oddly, there is no mention there of Ms N’s health problems, which include HIV, Type II diabetes, hypertension, diabetic retinopathy and possible depression). The other important development was that on 24/2/2014, all five children were taken into foster care.
Our earlier post described the CoA’s judgement as problematic and I think I can safely say that Lady Hale (giving the lead judgement, with whom the other Judges agreed) has resolved these issues as well as can be expected. The following passage from the review decision letter of 27/5/13 is subjected to particular scrutiny:
As you are aware Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council’s Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.
The Court’s conclusion from s.206, s.208 and s.210 of the Housing Act 1996, paras. 16.7 and 17.41 of the Code of Guidance, Art 2 of the 2012 Suitability of Accommodation Order and the consultation exercise which preceded it is that there is a statutory duty to accommodate in borough, where reasonably practicable, failing which authorities are under a duty to try to place the household as close as possible to where they were previously living (para.19).
The additional strand to this appeal was s.11 of the Children Act 2004, which requires local authorities to make arrangements to safeguard and promote the welfare of children. Importantly, this is not just a target duty but is applicable to individual cases, and ‘promotion’ requires a more pro-active approach (para. 27):
The question of whether the accommodation offered is “suitable” for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally. In my view, it is not enough for the decision-maker simply to ask whether any of the children are approaching GCSE or other externally assessed examinations. Disruption to their education and other support networks may be actively harmful to their social and educational development, but the authority also have to have regard to the need to promote, as well as to safeguard, their welfare. The decision maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision.
The SSCLG (as intervener) expressed concern that the lower courts were too ready to assume that WCC had had full regard to its statutory obligations, which meant that there could be no judicial scrutiny of a potential ‘first address out of the hat’ approach. Lady Hale accepts the validity of these criticisms and finds (para.36) that WCC gave no serious consideration to its obligations in Ms N’s case. There was no investigation into adequate school places or medical care in the Bletchley area, nor was there any attempt at an explanation why suitable accommodation closer to London could not be offered to her. So not only was WCC in breach of its Housing Act obligations but it was in breach of the s.11 CA 2004 duty too.
So how will local authorities cope with the burden of accounting for their actions in each case, a burden that the CoA had found to be intolerable? The proposed solution is set out at para. 39:
Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year. That policy should, of course, reflect the authority’s statutory obligations under both the 1996 Act and the Children Act 2004. It should be approved by the democratically accountable members of the council and, ideally, it should be made publicly available. Secondly, each local authority should have, and keep up to date, a policy for allocating those units to individual homeless households. Where there was an anticipated shortfall of “in borough” units, that policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. That policy too should be made publicly available.
Clearly, these policies are not going to be published overnight and there are going to be interesting suitability challenges in the coming months, particular where matching children to school places in out-of-borough areas is an issue. The least that can be said is that any decision letter containing little more than WCC’s present standard wording is unlikely to pass muster with the courts.
I presume the higher courts looked at this case on the basis of the homeless decision at the time the decision was made, which in this case is particularly significant as it pre-dates the introduction of the overall benefit cap of £500 per week for families.
Why that is significant is a lone parent with 5 children today will receive £427.01 per week in welfare benefit and child tax credit which leaves just £72.99 per week as the maximum amount that a 1P5C household can receive in hosing benefit (HB or LHA) – if they are not exempt from it by receiving DLA or PIP or ESA if in support group but not exempt if receipt of ESA and in working group.
The issue is one of suitability. How can any council end their homeless duty to a 1P5C household if that household will only receive £72.99 per week in any form of housing benefit?
Even in the lowest rent area of the UK and even finding the lowest priced 3 bedroom minimum sized council property for the size of household, could such a move ever be deemed as legally ‘suitable’ in the knowledge that the overall benefit cap meant the vulnerable household would have to top up the rent from other welfare benefit payments which the state has deemed to be “the minimum amount you need to live on?”
This case does not state what benefits Nzolameso received and presumably not considered if decided on the date at the time the decision was made.
Yet a similar case since October 2013 when the overall benefit cap went live nationally would need to consider this issue as to suitability, and if the Tories are not voted out of office in May they have stated the overall benefit cap will reduce immediately after the election to £440 per week in London and lower (perhaps 90% of this or £396 per week) in the provinces.
An overall benefit cap of £440 per week would see a similar 1P5C household receive just £13 per week in housing benefit in London and nothing at all in the rest of the UK!
Interesting developments ahead as to the overall benefit cap and suitability of local authorities discharging their duty !!
Joe, the benefit cap (and the LHA cap, which was what resulted in Ms N’s homelessness) has no legal connection to the Council’s statutory obligations to the homeless. There is a huge practical connection, of course, but no legal one, so it was not part of the reasoning of the judgment.
The benefit cap has already caused huge problems for London Councils, both in terms of people becoming homeless because if it, and the difficulties in sourcing temporary accommodation. Affordability is part of suitability, but is also the main driver of out of borough/out of London temporary accommodation.
There is a case from about a year ago R (Yekini) v Southwark, in which Michael Fordham QC said that an authority would still have to provide accommodation under Part 7 even if the applicant was not entitled to HB and so could not afford to pay the rent. That case said that – in the case of a unitary authority – arrangements with social services could be made to pay the rent or it could simply be let rent free.
Unsurprisingly, Southwark appealed. It was meant to be heard in March 2015 according to case tracker, but I think it was being held up by the Zambrano case.
We covered Yekini here. I didn’t know there was an appeal down. Will be interesting to see.
Giles, yes realise there is no statutory connection yet a huge practical one and the question was asking to what extent any rehousing could be considered “suitable” if the LAs involved knew of the low level of HB that would be paid, or how could they deemed such rehousing as ‘suitable’ given this.
Well aware of London boroughs problems with the benefit cap as is, yet the proposed reduction to £440 per week means it will effect every LA homeless department even in the lowest rent areas of the UK. As such the issue of whether a move is deemed ‘suitable’ given that little if any HB will be paid now becomes a major national issue for every council and as this case did not look at benefit cap but LHA cap in terms of suitability I strongly suspect other cases will come to the higher courts from Hull and other places ‘oop North!’