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Degrees of Homelessness?


Local Authority allocation policy, as it applies to those to whom the Authority has accepted a duty to secure accommodation, is still being thrashed out in the Courts.

Birmingham City Council is the latest to have their allocation policy found unlawful in R. (Aweys and Others) v Birmingham City Council [Link to Bailii added]. The Times Law Report describes Birmingham as having operated a two tier policy for priority in housing allocation for homeless. Those who were ‘homeless at home’ (due to unsuitability, statutory overcrowding, etc.) where placed in the lower priority band B, whereas those in temporary accommodation where placed in the top priority band A. Further, the homeless at home were expected to stay where they were.

Quite rightly, the Court gave this short shrift. Firstly, once a housing duty is accepted the Authority has a duty to secure suitable accommodation. Meaning the homeless at home can’t simply be expected to stay there.

Interestingly, the Court gave a guideline for how long the homeless at home might be expected to remain where they were, before suitable accommodation (temporary at least) should be found. Six weeks – anything over that would need clear justification.

Secondly, the Local Authority’s duty is to secure suitable accommodation and there is no basis in Part VI Housing Act 1996 for an allocation policy that states that some homeless will wait longer than others before this happens, simply because they are not in temporary accommodation (and here the Authority’s excuse for not offering them temporary accommodation was the difficulty in finding suitable temporary places – so the homeless families were effectively being penalised becase of Birmingham’s own problems). The Court found there was a clear duty to give priority to all homeless (where the duty is accepted). It is unlawful to give priority to a subset over others.

I am frankly puzzled that Birmingham thought it would get away with this. Once someone is accepted as homeless, the duty, and the priority, is clear under statute. Nice to have it confirmed, though. And that six week guideline could be useful.

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.


  1. Mark

    A not very well publicised aspect council housing is the sheer number of local authorities who still operate unlawful allocation policies. Aweys is yet another judgement addressing the failure of a council to give lawful effect to the reasonable preference categories.

    As a housing paralegal I still come across councils operating blanket exclusion policies which were outlawed by the Homelessness Act 2002 (applicants being told they can’t apply for a council home because they have former tenancy arrears or because don’t live in the council’s district). This despite the fact it is over 4 years since the 2002 Act amendments were brought into force.

    In Wales the failure by most of the 22 councils to implement lawful waiting list policies caused the Ombudsman to issue a special report (;lang=1;pID=76) in February 2006. There then followed a review by the National Assembly’s Housing Directorate of the progress made by councils in amending allocations policies.

    However, the courts still remain the principal means by which unlawful policies can be changed. I agree that it is very puzzling that Birmingham thought they could successfully defend this case. One can’t help but wonder about the incompetents running their legal department. They do not appear to appreciate that the ‘best’ (i.e. most cynical but neverthess effective) approach in holding onto these unlawful policies is to back down and house the individual applicants upon being threatened with judicial review proceedings in the hope that they don’t proceed to get a judgement.

    Whilst one sympathises with the very difficult job local authorities have in rationing access to the diminishing resource that is social housing, councils retain considerable discretion in how their waiting list rules are formulated. In other words they can make the changes required by the legislation and still have some leeway to give effect to locally determined priorities. There really are no excuses for the approach taken by Birmingham.

  2. contact

    A very useful comment, thank you. London Councils tend to be better behaved these days because they have been repeatedly judicially reviewed. They are also wise to backing down on individual cases to stop the JR as well. But in areas without housing solicitors…

    Birmingham’s behaviour as set out in Aweys was actually even worse than it appeared in the report. The unappealed portion of the first judgment was on their gatekeeping practices – refusing to accept a homeless application unless the person had first been through their housing advice team. A lot of people were stopped at that hurdle. This was declared unlawful and not appealed.

    Welcome to Nearly Legal, by the way.

  3. Mike McIlvaney

    What we tried to draw the Court’s attention to in the Aweys case was the “triple whammy” effect of B’ham’s housing policies:

    1.operating apolicy of refusing to accept Pt7 applications and instead requiring an applicant to go through “Home Options” interviews which acted as institutionalised gatekeeping;

    2.if an application was accepted (often under threat of proceedings) it would find that it was reasonable for a person to remain in their “homeless at home” accommodation pending allocation;

    3.homeless at home people were given an inferior banding with little prospect of such an allocation.

    The effect was that the whole process conspired against the applicant. In Mr Aweys’ case he suffered whammy (1). Then under threat of proceedings the council took an application but determined (incredibly) that he was not homeless. He was then accepted after launch of s202 county court appeal proceedings before then sufferring whammy (2) and (3).

    This was a typical, bloodboiling, scenario in Bham with the council picking off individual cases. The challenge in Aweys took months of coordination. All 7 cases were launched together (there were others that were picked off shortly before issue). We amassed a good deal of anecdotal evidence regarding the council’s practices. Over the Christmas preceding the January hearing Bham attempted to “gift” offers to the applicants but failed to resolve the claims (which we would have endeavoured to continue anyway).
    Bringing the cases was not easy and (to touch upon what another correspondent raised) what is very disconcerting at the moment is the situation regarding legal aid and the future landscape. As housing advice suppliers continue to slide away so the scope for the continuation or resurfacing of unlawful practice increases.
    Sorry for this belated comment but I’ve only today been introduced to the site.

    Mike Mcilvaney, The Community Law Partnership.

  4. contact

    Mike, many thanks for the detailed comment, very useful.

    The gatekeeping issue has suddenly become relevant again in my area of London. There are strong rumours that one of the large authorities is adopting precisely the ‘filtering homeless apps though housing advice’ technique that Birmingham tried. No doubt we will end up with the same problem of JR applications being picked off one by one before hearing.

  5. Jay

    This makes for a very interesting read. My relative is at present classed by Bham as homeless and remains in her home with two young children. Her homeless situation has arisen from the harassment of her next door neighbour’s and their visitors. She has only just received the outcome of her appeal/review and again being offered a totally unacceptable property. This is after a 5 month wait….

    Family and friends are left to pound the pavements looking for some kind of legal advice and support for her.

  6. Deborah Taylor

    We were given a section 184 by Redditch Council on 30/4/2008 due to medical grounds. In fact the property is in a serious state of dis-repair, though this is not mentioned. A recent surveyors report states the problems to the property.
    Despite my continual complaining because I am registered disabled and we are all sleeping in one room, due to the extent of mould growth and damp, this council has left us to live like this because we have asked to be referred to another area. No offer of temporary accomadation has been given to us and we have been told we have to wait. I cannot find a solicitor to take this on, can anyone help us please?

  7. Wakkierob

    Hi, I don’t know if this is different from above but I just want somewhere to live so I can start over with my Son in Wiltshire because I applied and waiteded 3mths to find a letter stating I had not sent my birth cert but I pack it all togher so I know the copy was sent and they just said well they didn’t have it so I need to send another one. Then a while later I got a email that said go in to the local wiltshire housing group which is 20+ miles away hence doing a letter I’ve been waiting ever since I came out of the army which was 6 yrs ago trying first dorset because I lived on the border and all the schools for my son where there sociaty sucks and the local authority says no way to me having my son at the mo. All I ask is a place to live and never been untidy even when I was out on the streets in my tent. I have to stay home and I feel like a child at the age of 30 it’s dame mad if you ask me. Why can druggies and prisoners get places in no time and good working citizens like me end up in prison for some place to stay????

    • NL

      We can’t give advice through the blog on people’s individual problems, I’m afraid. You can find housing specialist advisors through the link at the top right column of the site and you should use that to find help.

  8. Tanya Hatton

    Is this article still relevant as I have a consent order dated September 2014 to say my accommodation is not suitable after taking one year to get the consent order in place through delay tactics. March 2014 we are still here and being threatened with eviction if we do not sign a 10 year lease! This property is not suitable for my disabled son and his health is affected daily. I can’t find a solicitor to help either



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