Tag Archive for 'homelessness'

Gatekeeping and an absence of records

Published
by
NL
on 30/01/2010
in Homeless and Housing law - All
. 0 Comments

Local Government Ombudsman’s decision:  London Borough of Hammersmith & Fulham (09 001 262)

‘Ms Kenza’ (not her real name) approached LB Hammersmith and Fulham as homeless when she had to leave her private rented home following an incident of domestic violence. She was 8 months pregnant.

Hammersmith did not place her in temporary accommodation pending enquiries. Instead officers encouraged her to find accommodation in the private sector. A homeless application was not mentioned by the officers. She was later given a night’s accommodation by the out of hours service and, she asserted, she then spent 4 days sleeping rough in a park.

She complained to the Ombudsman that Hammersmith had failed to give her adequate advice and assistance and also complained of sexual and racial discrimination.

The Ombudsman found that Ms Kenza “suffered some injustice because she was not provided with the level of support and assistance she could reasonably expect as a person who was homeless and in priority need”.

Further, the Ombudsman found maladministration causing injustice.

The standard of record keeping by housing officers in this case was so poor that it hindered the Ombudsman’s investigation of the complaint and fell so far below acceptable standards that it amounted to maladministration.

He said: “It has not been possible to resolve some conflicts of evidence because of the absence of detailed contemporaneous notes recording housing officers’ contact with Ms Kenza, [voluntary agency] caseworkers and other professionals.”

Officers did not consider taking a homelessness application from Ms Kenza after she left her accommodation even though she had told a housing officer she was homeless. The Council applied too strict a test when deciding whether it should provide Ms Kenza with temporary accommodation by insisting she provide proof of homelessness first. The Council also failed to follow its own procedures for referring victims of domestic violence to a specialist domestic violence housing advocate for support and advice. The liaison and exchange of information between officers in the Children’s Service and Housing Service about a vulnerable service user was also ineffective.

However, in the absence of any specific incident or comment made by an officer, the Ombudsman did not uphold Ms Kenza’s complaint that she was subjected to racial and sexual discrimination.

The Ombudsman recommended that the Council apologise to Ms Kenza and pay her £750. In addition the Council should:

  • remind all housing officers of the need to maintain accurate and detailed records of their contacts with service users and their advisers and advocates;
  • review its systems for sharing information between Children’s Services (and Adult Services in relevant cases) and the Housing Service about vulnerable service users;
  • ensure that the established procedure for referring service users to the domestic violence housing advocate are followed; and
  • ensure that all forms used by the Housing Service are dated and ensure that records of service users placed in emergency accommodation by the Out-of-Hours Service are copied to the housing officer responsible for the case.

Impressive work there by LB Hammersmith and Fulham, compounding gatekeeping with incompetence. In case anyone from the Council is reading, let me remind you of the wording of s.188 Housing Act 1996, with a little emphasis.

188. Interim duty to accommodate in case of apparent priority need. — (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

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Don't answer the phone…

Published
by
NL
on 10/01/2010
in FLW case note, Homeless and Housing law - All
. 10 Comments

Makisi v Birmingham City Council (Birmingham County Court Appeal Ref: BM9 0166A, 6 Jan 2010)

This was the County Court hearing of a s.204 Housing Act 1996 appeal following s.202 review of a decision that an offer of accommodation was suitable and reasonable to accept, and subsequent discharge of duty under s.193. It is only a County Court appeal decision, but there are some interesting points on the review process worth noting.

Ms Makisi had applied as homeless, with her three young children. Birmingham had accepted the full Housing Act 1996 duty. The property, a three bed property, was agreed to be suitable in itself, but Ms Makisi requested a review of the decision on the basis of the distance from her 6 yo son’s school, about 2 miles, which would mean a bus trip and a walk at either end. It was important that her son remain at that school as he has autistic spectrum disorder which affects his comprehension, ability to communicate and to relate to others, attention and cognition. There were extensive special needs statements and reports, which were before the reviewing officer. Ms Makasi’s objection to the property was that she wold have to take her son (and with her the two infant children) to the school on the bus and the walk each morning and back each afternoon. Her son’s behavioural difficulties made that journey potentially dangerous, both for her son and others on the bus, in various ways, making the location of the property unsuitable and not reasonable as permanent accommodation for her.

Ms Makasi accepted the property, but then requested a review. The submission set out the problems faced in relation to her son and the dangers to her son and others. After a few weeks and a further letter of submissions, the reviewing officer called Ms Makisi and the same day sent a ‘minded to’ letter, giving an ‘opportunity to respond to issues which I am minded to hold against you’. This stated that:

Your case has been rebooked to be heard on 23 July 2009. If any further information in response to this decision which you would like to be taken into account, you or someone acting on your behalf may make oral representations, further written representations or both oral and written representations.

Ms Makisi’s solicitors wrote stating that Ms Makisi wished to make oral representations in addition to those in writing, ‘in line with the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999′ and asking for a time and date for a meeting.

On 27 July, the Reviewing Officer telephoned Ms Makisi. In what the Reviewing Officer later referred to as ‘a conversation’, it appears that Ms Makisi made statements about the dangers presented by travelling with her son and the Reviewing Officer put questions to her. There was no further evidence about this call. There was no evidence from the Reviewing Officer and Ms Makisi’s statement said simply ‘Through my solicitors I requested a meeting with Birmingham City Council by letter on 21 July 2009. I was advised by telephone by the Council that they do not need to see me in person.’

Ms Makisi’s solicitors sent a further letter requesting an appointment and enclosing some further reports on the son. The Council did not respond but on 14 August sent the review decision, which upheld the suitability of the offer.

On appeal, Ms Makisi argued that:
1. The respondent erred in law in that it failed to take into account the particular difficulties the appellant faced in travelling with her son.
2. The respondent erred in law by taking into an account an irrelevant consideration that the appellant might otherwise use public transport for other purposes, when those journeys might well not be when her son was with her.
3. The respondent erred in law in failing to engage with or address the practical difficulties that the appellant has in alighting from a bus with two other small children as well as her son who is at risk of running off and taking into account irrelevant considerations namely how parents of children without autistic spectrum disorder alight from a bus.
4. The respondent erred in law in failing to apply the test set out in Slater v Lewisham as to the distinct approach to be adopted in considering whether or not the accommodation is reasonable to accept and in substance decided the accommodation was suitable and ergo it was accordingly reasonable to accept.
5. The respondent erred in law in refusing to give the appellant an opportunity to be heard at an oral hearing and in treating her request for the right to make representations orally as discharged by having a telephone call with her.

Grounds 1 to 4 were dealt with fairly quickly. Taking a ‘realistic and practical’ approach to the review decision letter which was to be read as a whole, the reviewer had addressed herself to ‘the challenging nature of the journey, to the fact that the son’s behaviour would be difficult wherever and whenever the appellant attempted to travel with him – which she was entitled to take into account. While Ms Makisi’s difficulties were no doubt very real, it could not be said that the reviewing officer had failed to engage with them in any meaningful way. Matters of fact were for the Council and the margin of appreciation was wide. The letter may have contained stock phrases, but, taken as a whole, had grappled with the issue of whether it would be reasonable for Ms Makisi to accept the accommodation without wholly running together suitability and reasonableness.

Ground 5 underwent rather greater consideration.

The issue was whether the reference to ‘representations [...] orally or in writing or both orally and in writing’ in Regulation 8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 was a) engaged, and if so b) meant in person.

Birmingham argued that the ‘minded to’ letter of 15 July 2009 did not raise a ‘deficiency or irregularity in the original decision or the manner in which it was made’, or mention Regulation 8. The obligation only arises if the reviewing officer considers that there are irregularities or deficiencies in the original decision. This was simply volunteering an opportunity for further submission.

Ms Makisi argued that the decision letter of 7 April 2009 was a bare statement of the statutory test and not a statement of reasons, as required, it was thereby defective and Reg 8 was engaged. The Court agreed with this submission. Further, the Reg 8(2) obligations were mandatory. The letter sent mirrored the Reg 8 requirements, even if it wasn’t mentioned. The clear inference on the available evidence was that it was written to satisfy the duty.

The choice as to how to make representations was tentatively found to be the Applicant’s. Why should the Council have the power to limit the way in which the representation is made?

On what constitutes an oral representation, Ms Makisi argued that ‘orally’ meant face to face or at a hearing. Birmingham argued it could be a telephone call.

Lambeth LBC v Johnston [2008] EWCA Civ 690 (our report here) was concerned with the right to make representations rather than the manner in which they were made, but Rimer LJ in that case expressly compared oral representation to oral advocacy and argument in Court. Ms Makisi argued that a telephone call did not give this opportunity. The telephone call was without notice and may have caught Ms Makisi unprepared (although this point was not made in her witness statement) and apparently consisted of the Reviewing Officer asking questions.

As to the sufficiency of the telephone call for Ms Makisi to make her case, this was a matter of fact and there was insufficient evidence to decide it, but the interpretation of the regulations was a significant issue.

Ms Makisi argued that the heading of paragraph 19.12 of the Homelessness Code of Guidance for Local Authorities of July 2006 was ‘Oral hearings’ – the Court observed that the text was the same as Reg 8 and only mentioned ‘representations’.

S.203(2)(b) Housing Act 1996 enabled the Secretary of State to make provision by regulation ‘as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing’. However, Reg 8 provides for written and oral representations, neither of which are provided for in these terms by s.203(2).

The Court held that the Regulation must be construed by considering the ordinary and natural meaning of the terms in the context of their purpose and the enabling powers. There was no express provision made for a hearing, despite s.203(2). There is a real distinction between oral representations and oral hearings, as oral representations may be made in other ways.

The other review provisions under the 1996 Act – in relation to introductory and demoted tenancies – both have similar enabling provisions to s.203(2), referring to oral hearings. In the subsequent regulations (Introductory Tenants (Review) Regulations 1997) the regulations provide for an oral hearing, unlike Reg 8. Similarly, the Demoted Tenancies (Review of Decisions)(England) Regulations 2004, Regulation 4 sets out the ‘right to an oral hearing’. So, while the Secretary of State had the power under s.203(2) to make regulations providing expressly for an oral hearing, and had done so in these other regulations, there was no such express provision in Reg 8.

Although troubled by this, as a telephone call does not afford the same opportunities for advocacy as a hearing, the Court found that a telephone call could be sufficient for oral representations under Reg. 8.

Appeal dismissed.

A difficult point and the finding perhaps goes against the tenor, if not the letter, of the judgment in Lambeth LBC v Johnston. Is there a second appeal in the offing?

From Ms Makisi, CLP and James Stark, for Birmingham CC, Emily Orme

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Physical violence only

Published
by
NL
on 17/12/2009
in FLW case note, Homeless and Housing law - All
. 5 Comments

Yemshaw v Hounslow LBC (2009) CA (Civ Div) 15/12/2009 [only as Lawtel note so far]

This was an appeal to the Court of Appeal from a s.202 appeal on the issue of what ‘violence’ in s.177(1) Housing Act 1996 meant. S.177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence.

Ms Y claimed that she had to abandon the family home with her children because of her husband’s abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Housnlow found that this was not sufficient to amount to violence under s.177(1) and that it as therefore reasonable for her to remain. This was upheld on review and appeal, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404.

At the Court of Appeal, with the Secretary of State for Communities and Local Government intervening, Ms Y argued that Danesh had been decided in view of the Homelessness Code of Guidance for Local Authorities 2002, which supported the definition of violence as involving physical contact. However, the 2006 guidance widened the scope of violence to include other non-physical forms of abuse. The Secretary of State supported this view. Ms Y argued that the Court had a statutory duty to consider the Guidance and on that basis, Danesh would have been decided differently today. A more flexible approach to the definition of the term by the courts was consistent with a purposive approach to social legislation designed to reflect society’s changing values.

Held:

Danesh was not decided per incuriam.

Y overstated the importance of the codes. While the court was obliged to have regard to them under s.182 Housing Act 1996, they were no more than persuasive authority. Nothing in s.182 or the Act meant that ‘violence’ had the meaning that the Secretary of State may ascribe to it from time to time.

If the Secretary of State wished to introduce new circumstances that would mean it was not reasonable to remain, there was a mechanism in s.177(3) for doing so. As this mechanism existed, the court should be hesitant in accepting that the meaning of a word had changed over time.

Continuing to follow Danesh to define violence as physical abuse would not stultify social attitudes to domestic violence.

A wider definition would in any event lead to practical difficulties for Local Authorities, who would have to make subjective judgments on applicant’s circumstances, which would be inconsistent with the straightforward requirement under s.177(1).

I wonder if we will see the s.177(3) mechanism exercised soon? I’m not going to hold my breath.

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Rumours of gatekeeping

Published
by
J
on 20/11/2009
in Housing law - All
. 3 Comments

News reaches us here at NL of a decision of the High Court (Birmingham District Registry) by the name of Mehari, Kelly and JI v Birmingham City Council (9 and 10 November 2009) given by Hickenbottom J. Details are sketchy and, as ever, we’d be grateful for any further information.

As we understand it, persons who apply for assistance to BCC are asked to complete a form relating to their reasons for leaving their previous accomodation. Unless BCC are satisfied that the person is at risk of harm in that accomodation, they don’t provide interim accomodation (i.e. they expect the applicant to go back to the previous accomodation).

His Lordship found that additional “risk of harm” aspect to be unlawful and declared that Birmingham City Council were “imposing an unlawful extra-statutory hurdle” to persons seeking to make an application for housing assistance under Part 7.

I know that  some of BCC legal and housing are readers of this blog. I presume that CLP were involved with this for the applicants… anything any of you would care to share with the rest of us? :-)

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Contracting out homelessness reviews like the town hall catering contract

Published
by
Dave
on 20/08/2009
in FLW case note, Homeless and Housing law - All
. 8 Comments

The Court of Appeal’s judgment in Heald and others v LB Brent [2009] EWCA Civ 930 is just out concerning the outsourcing of s 202 Housing Act 1996 reviews by Brent to Minos Perdios’ company Housing Reviews Ltd.  There have been a number of County Court judgments on this issue which have not necessarily been ad idem (see eg our post on Augustin v Barnet).  The argument against contracting out has been twofold: first, councils have no power to contract out their reviews function under Part VII (and, by extension although not relevant in this case, Part VI) because it is not a “function” of the local authority within s 70, Deregulation and Contracting Out Act and the Contracting Out Regs made under it (Local Authorities (Contracting out of Allocation of Housing and Homelessness Functions) Order 1996, SI 1996/3205); second, there is the appearance of bias on the part of Minos Perdios which gives rise to an Article 6 infringement.

The Court of Appeal dismissed both arguments.  The main judgment by Stanley Burnton LJ was given in robust terms and without regret (at [61]).  Sir Simon Tuckey simply agreed.   Sedley LJ agreed but gave a wonderful lament for the impoverishment of administrative justice  (and which I make no apologies for quoting in full below).

On the first argument, though, Stanley Burnton LJ seems to have treated the matter as pretty obvious (at [44]).  He is able to do so through citing the well-known definition of functions given by Lord Templeman in Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1, 29:  a function “… embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions.”  This definition is always trotted out as if it’s generic, but Lord Templeman was dealing with its use in a specific context, viz the legality of swap transactions in relation to (if I remember rightly) s 110, LGA 1972.  It’s now taken as gospel, but really must be sorted out.  Anyway, once you accept that definition applies, the argument pretty much folds.  It must follow that a review is a function for the purposes of s 70 capable of being contracted out, and it is significant that the review function is not expressly excluded by the SI (as other functions are).

How to deal with Runa Begum though?  In Runa Begum v Tower Hamlets [2003] 2 AC 430, Lords Bingham and Millett had made pretty scathing comments on the lawfulness of contracting out the review function – Lord Bingham (at [10]) had “very considerable doubts” whether it was a function; and Lord Millett agreeing pointed out that the SI was “concerned in very general terms with deregulation and the subcontracting of ordinary local authority functions” and was not apt to confer that power.  Lord Hoffmann doubted its efficacy and practicality, as opposed to the lawfulness.  Although not pointed out in Heald, it is notable that Hazell was not cited in Runa Begum.  Stanley Burnton LJ brushed the Runa Begum comments aside (at [50]) on the basis that the SI “… is indeed clear and permits contracting out of reviews”.

On the second argument, Stanley Burnton LJ started from the Runa Begum position that the a local authority employee does not infringe Article 6 when conducting a review  and

“I do not see that a third party should necessarily be any less impartial than an employee.  Whether he can be regarded as less independent may depend on the particular facts, and in particular the terms of the contract between the authority and the third party. It is possible to build into a contract a high degree of independence on the part of the third party, for example by prescribing a long contractual term that is terminable only for serious breach. To do so would, however, bring into play another of the Appellants’ objections to contracting out, namely that the third party is not democratically accountable.” (at 52])

Given that the decision on review, although made by Minos Perdios, was accepted by the council as its own (as indeed it would have to – see s 72, 1994 Act), the democratic accountability argument wasn’t a runner.   That conclusion about contracting out was fortified ( at [54]) by reg 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71, which appears to accept that an external person may make a review decision.

There then follows an examination of the Minos Perdios contract with Brent together with his website.  As opposed to the “high degree of independence” considered in [52], it was noted that the contract has no real security of tenure.  But that didn’t matter because (a) the fact that he acts for a significant number of local authorities “confers a certain independence in relation to each of them”; and (b) local authorities do not necessarily have security of tenure if their “work is not to the liking of [their] superiors or political masters” (at [56]).

Drawing on the test of apparent bias in Porter v Magill [2002] 2 AC 357 (one of my all-time favourites, I’ve got to admit), he found that the Minos Perdios website did not convey that real danger of bias to an objective and well-informed observer (at [57]).  Equally, the sheer number of reviews done by Minos Perdios does not suggest that he doesn’t consider each one.  It was misleading that he signed his review letters on Brent notepaper as “Minos Perdios Reviews Manager” but that false impression was immaterial.

Ms Heald was successful on one point about which we have commented before on this site – the HHJ who heard her appeal simply said that he preferred the arguments for Brent without reasons.  That was clearly insufficient (but does seem to happen nevertheless) but immaterial as the CA had reviewed all the evidence before him (at [60]).

Whilst Stanley Burnton LJ dismissed the appeal without regret, Sedley LJ, in a short reflective judgment, offered the following analysis on the first issue:

64 Local government has long since been divested of most of its adjudicative powers. The modern forum for the exercise of such powers is an independent tribunal. But by virtue of primary legislation important decisions which can make the difference between a home and the street for thousands of people every year have been consciously placed and kept within the administrative framework of local government, with recourse to the courts on process only and not on merits.

65 It is into this framework that the power to contract out has been introduced. Certain functions are exempted from the power, but the review of homelessness decisions is not one of them. One understands very well why members of the Appellate Committee [in Runa Begum] were dubious, even so, about the contracting out of an adjudicative function as if it were the town hall catering contract. But the fact is that it is difficult to envisage a process less compatible with Article 6 than the in-house review by one official of another official’s decision on an issue on which the local authority, through both of them, sits as judge in its own cause. Starting from such a low base, delegation of the review function to a competent outsider on the kind of terms we have seen in this case, whatever its weaknesses, probably offers more in the way of independence and impartiality than the in-house system.

This lament for local authority adjudications as if they are the town hall catering contract will live with me for a good while.

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Addendum to Homelessness CoG…

Published
by
Dave
on 05/08/2009
in Homeless and Housing law - All
. 4 Comments

DCLoG have put out supplementary guidance to local authorities on intentional homelessness in the context of applicants who face homelessness following difficulties with mortgage commitments.  I suspect if you look hard enough, you’ll find it, but it’s not obvious on the DCLoG website (it wasn’t on the “what’s new” section, even though it came out today).  It’s short and the key paras are 3-4 and 10-12.  These are generally concerned with establishing that owner-occupiers deal with mortgage difficulties in different ways, and local authorities need to be sensitive to those without just a knee-jerk IH finding.  There’s also the Birmingham v Ali decision to tie into/digest.

At para 10, the addendum draws attention to the following:

some former homeowners may seek housing assistance from a
local housing authority having lost their home in one of the following circumstances:
i) having voluntarily surrendered the property (handed the keys back);
ii) having sold the property;
iii) where the property was repossessed after the applicant refused an offer under the MRS;
iv) where the property was repossessed after the applicant refused an offer of HMS;
v) where the property was repossessed and the applicant had not sought help.
There should be no general presumption that a homeowner will have brought homelessness on him or herself in any of the above scenarios.

The addendum then goes on to deal with homelessness, and makes the important point that:
Consequently, where someone was already homeless before surrendering or selling their home or refusing an offer under MRS or HMS, the ‘acts’ of surrender or sale, and the ‘omission’ of refusing an offer of MRS or HMS cannot be treated as the cause of homelessness.

As regards IH, the addendum makes clear that local authorities, in those circumstances, “… will need to look at the substantive causes of that homelessness prior to surrender or sale of the property or refusal of an offer of assistance under the MRS or HMS” (para 12).

This has left me with a warm feeling – DCLoG are clearly trying to do the right thing – but also slightly uneasy – they must have felt it necessary to clarify the CoG with this addendum on the basis that there’s dodgy decision-making going on (or, possibly, might be going on).

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Not just suitable but properly so

Published
by
NL
on 31/07/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

Araya, R (on the application of) v Leeds City Council [2009] EWHC 1962 (Admin)

S.188 Housing Act 1996 accommodation, provided pending s.184 decision or s.202 review of a negative s.184 decision, must be ’suitable’. This means that any accommodation to which a homeless applicant is transferred, must also be suitable. Araya, R (on the application of) v Leeds City Council [2009] EWHC 1962 (Admin) was a judicial review of just such a decision on to give notice on existing accommodation and offer an alternative place, which raises a couple of interesting points.

Ms Araya is a refugee from Eritrea, with two infant children and indefinite leave to remain. She applied as homeless to Leeds. She was placed in emergency temporary accommodation. She remained in this accommodation after a finding of intentional homelessness, a s.202 review, s.204 appeal and, at the relevant time, was awaiting a further s.202 review as a result of the appeal. As it was accommodation pending s.202, this was still s.188 accommodation.

She was accommodated in the Harehills area of Leeds, where there was an Eritrean community and a church she attended on Saturdays and Sundays. In March 2009, Leeds gave 7 days notice on the accommodation and offered a place in a hostel in Bramley, which was supported accommodation.

Ms Araya sought judicial review of the decision:
a) to require the claimant and her family to move from their present accommodation at 56 S Avenue, Harehills, Leeds;
b) that the Mount Cross Hostel, Bramley was suitable accommodation for the claimant and her family;
c) to require the Claimant to move on 7 days notice.
The grounds were that
i) the decision did not properly take account of location;
ii) in all the circumstances there was insufficient notice given to the claimant to move.

On i) while in itself the hostel property was not in itself unsuitable, Leeds had failed to consider the importance of location to suitability.

On ii) 7 days notice was too short, inhumane and showed that the Council had failed to consider Ms Araya’s Art 8 rights.

Overall, even if

the Hostel was not unsuitable, the decision nevertheless has to be taken properly and in accordance with the Act; if flawed, the decision does not do what the Act requires; it is no answer that the end result is the same –’you have accommodation that is suitable’. This is because, he submits, those who apply are entitled to the possibility that there might be property that was even more suitable if the process were carried out correctly. [Para 7]

Ms Araya relied on R v Newham London Borough Council ex parte Ojuri (1999) 31 H.L.R. 452 which held that a flawed decision, that did not fully consider the applicant’s situation, meant that whether other, better, possibilities were available was not considered.

Held:
Such cases turn on their facts. It is true that the process of the assessment of suitability must be properly carried out, regardless of the ’suitability’ per se of the property proffered.

Here Leeds had a clear reason for moving the applicant to the hostel. it was ‘tier 1′ accommodation which meant that she would be supported in her bidding for suitable permanent accommodation, which had been a problem. There was evidence that Ms Araya’s support in the Eritrean community in Harehills, and her church, had been considered by the officer, including transport links, such that the Homeless Code of Guidance had been followed. There had been an offer of alternative accommodation, which was refused.

On the notice point, the Claimant was fully aware she might have to move at short notice. It was emergency accommodation that she had been in for 8 months before the decision. There had been previous efforts to move the Claimant into other tier 1 accommodation. Hostel places became available at short notice. In the circumstances the short notice was not an infringement of Art 8 rights.

Application dismissed.

While such cases are always going to be intensely fact sensitive, this is interesting in that the argument by the Defendant that the accommodation offered was in itself suitable was not taken as being the end of the claim. The process of the assessment of suitability has to be properly conducted, or the risk is that other, better, possibilities would be excluded by the decision.

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Support and suitability

Published
by
NL
on 12/07/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

Abdullah v City of Westminster [2007] EWCA Civ 1566 is not a new case. In fact it is two years old, but the transcript of the Court of Appeal judgement has only just come out (and it isn’t on Bailii). So we’ll do a brief note.

The case was a second appeal from a s.204 appeal to a Circuit judge. There has indeed been a previous appeal, in which HHJ Collins had quashed a review decision and required a fresh decision. This appeal was from the second decision.

Mrs Abdullah was a refugee from Yemen. She was accommodated in Barnet but moved to Westminster (with Barnet’s encouragement) as there was a Yemenite community in Westminster, including relatives, who could support her with her four children. She applied as homeless to Westminster.

Westminster accepted a duty and offered her accommodation in Barking. The review was of the suitability of the accommodation. Mrs Abdullah made submissions on her reasons for needing to live in Westminster. The first review found that the offered accommodation was suitable. It was overturned on appeal on the basis that

it had missed the real point, which was not that she would very much like to live in Westminster, [...] it was that she had a real need to be in Westminster because only in Westminster could she get support from friends and relatives and, accordingly, only by putting her in Westminster could the council comply with its legal duty to provide her with suitable accommodation.

The second review decision also found that the accommodation in Barking was suitable. The question was whether this time the review officer had properly tackled the reason for Mrs Abdullah’s need to live in Westminster.

Mrs Abdullah argued that:
1. the review officer had failed to pay proper attention to what HHJ Collins had said in the first appeal on the reasons for needing to live in Westminster.
2. the review officer placed undue emphasis on flawed information from Social Services.
3. the review officer did not place the correct emphasis on available medical evidence, which did not support his conclusion.

On 1. Jacob LJ found that HHJ Collins was not making any findings of fact and that was not his function. His comments were not, therefore, binding on the reviewer as a finding of fact.

On 2. Jacob LJ found that the information from Social Services was enough to support the review officer’s view, although there was clearly an issue in dispute about the extent of the support network in Westminster, this was not a matter for the Court to decide.

On 3. Jacob LJ found that the issue the review officer was to address was whether this was a matter of need rather than of ‘mere strong convenience’. While it could not be said that the review officer’s summary was entirely fair:

bearing in mind that this is not a legal document to be construed like a will or a statute, there is enough, and only just, to justify the statement. What is really being said, if one summarises the medical material overall, is that it would be much, much, much better for this lady to be in Westminster, but not quite that she cannot cope without it.

Wilson LJ had concerns with the review, in particular in the ease with which the 10 letters by Mrs Abdullah’s family and friends on the support she was receiving were set aside as against 2 short notes from social services, and in the handling of the medical evidence. He further identified two sentences that HHJ Collins had specifically said had missed the point in the first review which had been repeated verbatim. However:

Reviewing officers are not judges and have no legal training. They are decision makers, often overworked. This reviewing officer was at the time the only officer conducting reviews under section 202 of the Act of 1996 for the whole of the City of Westminster. Reviews of reviewing officers, when subject to appeal to the county court under section 204 of the Act, are not to be subject to the degree of analysis apt to an appeal to this court from a judgment of a professional judge; and the appeal to the circuit judge is only on a point of law. That said, as I am sure the reviewing officer would in retrospect accept, this second review was hardly his finest hour.

There was enough in the review to indicate that the review officer had identified the appellants case and it was ‘just about’ open to him to conclude as he did on the available evidence.

Arden LJ concurred. On the specific issue of the weight to be accorded to the judgment of HHJ Collins on the first review in the second review, she held:

There would still have to be a second review; and it would be inconsistent with that review, being a fresh review [...] for the officer dealing with the second review to do so on the basis of any particular disposition. He had to look at the matter afresh. Of course he would pay respect, and should pay respect, to what the judge had said and take account of his judgment, but there was no question of deference or giving what the judge had said any particular weight which would alter the normal method of review.

Further, in regard to the letters from friends and family, the review officer was entitled to decide what weight to give the letters and the wieght he had given them was not untenable in the circumstances.

Appeal dismissed.

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Not reasonable but suitable

Published
by
NL
on 02/07/2009
in Homeless, Housing law - All and Various (non-housing)
. 0 Comments

Not for the first time, I (and I suspect others) have been completely wrong-footed by Baroness Hale. It would be fair to say that the House of Lords judgment in the joined appeals in Birmingham v Ali and Moran v Manchester [2009] UKHL 36 has come as something of surprise. Unfortunately, its effects will be felt for a long time and it looks likely to initiate a whole new sub-category of litigation in homeless cases, the ‘are we there yet?’ claim. On the positive side, though, its effects on Women’s Refuges are helpful, largely removing the danger that a refuge place would be classed as accommodation in which it was reasonable to remain for homeless application purposes.

First the background on issues in the joined cases (and should you wish, our reports on Ali/Aweys and Moran in the Court of Appeal).

Birmingham v Ali (formerly Birmingham v Aweys) concerned Birmingham’s policy of leaving the homeless at home in the same property, once a duty under s.193(2) had been accepted, and placing them on the Part VI allocation scheme in Band B, where homeless in temporary accommodation were placed in Band A. In the High Court and the Court of Appeal, it was found that the duty to provide accommodation under s.193(2) Housing Act 1996, which must be ’suitable’ under s.206(1), meant that suitable accommodation had to be provided immediately or a within a reasonably short time. Both High Court and Court of Appeal found that accommodation in which it was not reasonable to expect the applicant to remain (the s.175(3) homelessness test) could not be suitable accommodation for the purposes of s.193. The Court of Appeal held that ’suitable’ had to be the same before and after the housing duty arose. Further, being placed on the allocation list was not satisfaction of the 193 duty. Yet further, Birmingham’s allocation policy which distinguished between the homeless at home and the homeless in temporary accommodation was unlawful as the distinction was irrational.

Moran v Manchester concerned Manchester’s finding that a women’s refuge was ‘accommodation in which it was reasonable to remain’ such that in losing her place at the refuge Ms Moran had made herself intentionally homeless. The Court of Appeal had found that a refuge a) was accommodation and b) was capable of being accommodation in which it was reasonable to remain depending on the facts. This did, of course, mean that women’s refuges were in danger of seizing up, as the women in the refuges would not, or not necessarily be classed as homeless.

In the House of Lords, at the Lords request, the cases were placed together, although heard months apart. The reason why becomes apparent. The sole opinion is from Baroness Hale, although in effect a joint opinion with Lord Neuberger.

The main issue in both cases is identified as the meaning of the the phrase ‘accommodation which it would be reasonable for him to continue to occupy’ (s.175(3)) and its links to s.191(1) on intentional homelessness. There are other issues on Birmingham’s appeal, which I’ll come to later.

Baroness Hale states that the phrase ‘would be reasonable for him to continue to occupy’ looks to the future as well as describing a current state. It is looking at occupation over time [para 36], where s.177(1) states simply ‘it is not reasonable’ to occupy property where there is a risk of violence. This is in accord with the Act’s orientation to those who are homeless or ‘threatened with homelessness’.

The definition of ‘reasonable to continue to occupy’ is therefore to be taken as meaning that someone can be homeless if they have accommodation which it is ‘not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene’ [para 34].

This means that someone can be accepted as homeless ‘even though they can actually get by where they are for a little while longer’. [para 38]. ‘Not reasonable to continue to occupy’ doesn’t necessarily mean that the person cannot spend another night in the property – and if they can’t then the s.188 temporary accommodation duty would be triggered immediately and so into the s.193 duty.

However, as the authority can satisfy the full duty under s.193(2) by providing temporary accommodation (followed of course by provision of further accommodation) it is clear that accommodation which it may be unreasonable to occupy for a long period can nevertheless be reasonable to occupy for a short period. Accordingly:

there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty. [para 42]

The requirement that the accommodation arranged under s.188 or under s.193 (for temporary accommodation) be suitable means that it must be suitable for the period of occupation envisaged., What is suitable in the short term may not be suitable in the medium or longer term. [para 47]

So the same property in which it would not be reasonable for the homeless applicant to continue to remain under s.175(3) may be suitable for his/her continued occupation in discharge of s.188 or s.193(2) duties!

Moran v Manchester is thus disposed of. A women’s refuge will not be accommodation that it would be reasonable for the woman to occupy indefinitely, unless there are clear facts indicating that circumstances are otherwise. It would therefore fall under s.175(3) and she would be homeless as long as she stayed there. There is therefore no need to deal with the issue of whether the refuge was accommodation at all (Sidhu) or whether it was caught by the decision in Puhlhofer, as was the issue in the Court of Appeal, although the Court of Appeal was right that Sidhu did not survive Puhlhofer [paras 52-56].

On the Birmingham cases, the issue becomes at what point the accommodation could no longer be described as suitable for discharge of the s.193(2) duty and the local authority would therefore have to secure alternative accommodation under that duty. [para 48]

Baroness Hale, while acknowledging that ‘it may be’ that the Birmingham cases meant the Council was on breach of its duty at some point, says that this is a question that turns on the particular facts in a case. As the basis on which the Birmingham cases were brought was on the principle, rather than their specific facts, there was no longer any basis for a decision in their favour in the claim.

On the practical implications, a court faced with a claim that the person has been left in the accommodation for too long should be slow to accept that this is so, as it is primarily a question for the authority. Nonetheless, there will be cases where the court ought to step in. While it would be wrong to ignore pressures on stock, budgets and personnel on the part of the authority, one cannot overlook the clear duty to the homeless imposed on the authority. So there will be cases where the present accommodation is so bad, or has gone on for so long that the court will conclude enough is enough [para 51]

And that was main argument done with. On the lawfulness of Birmingham’s allocation policy, it is clear that Part VI and Part VII duties are different. Performing a Part VI duty does not mean that the Part VII duty is satisfied and vice versa. Birmingham’s view that temporary accommodation was automatically Band A and homeless at home automatically Band B meant that the Council could not address the ’short term’ basis of the suitability of the homeless at home accommodation.

As far as the Court of Appeal’s judgment on the allocation policy was based on the conclusion that the applicants could not lawfully have been left in their current accommodation, it was wrong. However, that judgment was also based on the view that the Part VII duty to both groups was identical and it was unlawful to prioritise one.

R (Ahmad) v Newham LBC[2009] UKHL 14 (our report) suggested that, as long as a reasonable preference was given to all homeless applicants, there was no reason why an authority should not decide to give further priority to one group over another, as long as it was not irrational.

However, on the sparse information given to the court, there did not appear to be a rational justification for the policy of prioritising those in temporary accommodation over the homeless at home where a duty had been accepted. So, the policy was unlawful on that basis.

Thus the result was:

Moran v Manchester: Appeal upheld.
Birmingham v Ali: It is lawful for Birmingham to leave the ‘homeless at home’ where they are in the short term. It is not lawful for Birmingham to leave them there until a property becomes available under the allocation scheme – the present accommodation may well become unsuitable long before then. The allocation policy is unlawful to the extent that it gives priority to people in one type of temporary accommodation which is no less satisfactory than that of the homeless at home.

Comment.
It is perhaps difficult to resist the view that, having arrived at a neat and effective solution to the problem posed by Moran v Manchester – where the ‘it is not accommodation’ argument was in real trouble – the Lords sought to map that onto Birmingham v Ali and achieve a ‘practical’ result. But, as far as I can see, Baroness Hale and Lord Neuberger have effectively read in the word ‘indefinitely’ to s.175(3) such that it reads ‘A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy [indefinitely]‘. Certainly that is the implication of para 52.

I’m deeply uneasy with this idea of a ‘forward looking’ sense to s.175(3). ‘Forward looking’ is covered by s.175(4) – likely to become homeless within 28 days. The forward looking aspect of s.175(3) is surely that continued occupation after this point in time would be unreasonable.

It may be worth considering whether the judgment opens up a whole new aspect to homelessness applications – ‘not reasonable to remain indefinitely’, as that appears to be the clear implication.

And then suitability in respect of s.188, s.190 and s.193 accommodation. Clearly, suitability is, in terms of temporary accommodation, not an issue of suitability for indefinite occupation. But as a not so hypothetical question, given the facts in the Birmingham cases, how can a statutorily overcrowded property where a duty is accepted be suitable for any length of time? (although Harouki v RB Kensington & Chelsea suggests otherwise, but may itself be wrongly decided in the light of this case) – but of course this is question of circumstance and fact that we will be now left to litigate as ‘no longer suitable’ (‘are we there yet’) cases. I can say with complete confidence that the legacy of Baroness Hale’s opinion will be a couple of years of cases on ’suitability’.

And what will be the venue? If the assumption is that remaining in the property is discharge of s.188 or s.193(2) duty, is the route via s.202 review and s.204 appeal? Or, if it is a freestanding decision, is it subject to judicial review? Para 50 does not make it clear, with passages that might imply both routes. Should we expect a case or two on this issue. Of course, if the authority refuses or fails to consider a submission on (un)suitability, that is a JR.

The upshot is that the ‘practical’ solution will mean a lot of litigation, leave a lot of people in properties in which it is not reasonable for them to remain, but, on the plus side, solve the disaster facing women’s refuges. Birmingham’s previous allocation policy is also left unlawful, which, frankly, has to be a good thing as a rational justification was nowhere in sight.

Heaven knows how costs were allocated on the Birmingham cases, but there will be a certain unhappy Birmingham based practice… Plus I will have to swallow all previous ‘intent on suicide’ comments – intent on self mutilation, perhaps, but not suicide on Brum’s part. Whether they are going to like the legacy in practice is another matter entirely.

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House of Lords Newsflash

Published
by
chief
on 01/07/2009
in Homeless and Housing law - All
. 0 Comments

A full report on Birmingham v Ali and Moran v Manchester [2009] UKL 36 will follow in due course, but for those of you who simply can’t wait for your fix of House of Lords homelessness judgments, the headline is that both appeals are allowed to limited extents. For clarity, Birmingham v Ali is the Aweys v Birmingham appeal.

Baroness Hale, with whom their Lordships all agreed said that Birmingham can decide that a family is homeless because it is not reasonable to remain in their present accommodation indefinitely and to accommodate them for as long as it is suitable as short term accommodation.  However, they can’t leave them there until a house becomes available under the allocation scheme.  Birmingham’s allocation scheme was unlawful to the extent that it gave preference to people in one type of temporary accommodation that was no less satisfactory than the accomodation of those homeless at home.

In Moran although there may be circumstances in which it is reasonable to remain in a refuge indefinitely, there was nothing to suggest that it would be in this case.  The finding that Ms Moran had become homeless from the refuge intentionally was quashed.

We reported the Court of Appeal decision in Aweys (as it was known at the time) here and in Moran here.

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