07/02/2008

Birmingham v Aweys

Hot off the press – judgment released today.

Birmingham, apparently intent on suicide, appealed the judicial review decision in Aweys. Birmingham City Council v Abdishakur Aweys & Ors [2008] EWCA Civ 48. They lost, badly, on all counts.

Birmingham argued that accommodation that was not suitable under section 175(3) could still be suitable for a limited time for the purposes of section 210 after a duty under section 193 has been accepted. The court held otherwise, the definition of ‘suitable’ has to be the same before and after the housing duty arose. Awua (R (ex p Awua) v Brent LBC [1996] 1 A.C. 55) did not help Birmingham because the accommodation in that case was acceptable albeit short life housing.

Birmingham also argued that Collins J had erred in his ruling that the allocation scheme was unlawful because he held that Birmingham a) could not take financial considerations into account in making policy, and b) he purported to determine priorities between the homeless himself. The court said a) no he didn’t, and b) no he didn’t. One other technical point turned out to be based on a typo. And that was pretty much that.

This does leave a rather difficult practical situation, as a council will be in breach of duty unless it finds suitable accommodation immediately someone is accepted as homeless. While this can be waived by consent, this is not something that the council can rely on. Collins J had recognised this by giving a guideline of 6 weeks as a reasonable period in which to secure alternative accommodation. LJ Arden’s judgment worries about the impact of immediate effect, but declines to construe the statute as including ‘a reasonable time’ for the accommodation to be secured. On the other hand, she doubts whether a mandatory order would be made by the court where a council genuinely cannot secure suitable accommodation immediately.

I’m guessing that Mike McIlvaney, the Community Law Partnership and Jan Luba QC are happy bunnies tonight.

By the way, the Court limits its discussion of ‘suitability’ to the issue of the homeless at home, because there are two pending cases Richards v Ipswich BC and Manchester CC v Moran, both concerning women’s refuges, that may address the issue of suitability. Something to watch out for there.

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.

10 Comments

  1. J

    The judgment isn’t anything for housing lawyers, the homeless or local authorities to cheer. I say this for the following reasons (none of which should be taken as a criticism of or comment on any of the parties in the BCC v Aweys case).

    On the one hand, it is plainly wrong for a local housing authority not to comply with its statutory duties. I wouldn’t want to stay in overcrowded accomodation and any right thinking person can have nothing but sympathy with the applicants in cases such as this.

    On the other hand, there must be a degree of sympathy for hard-pressed local housing authorities. Since the 1980s they’ve lost a significant amount of their best quality housing stock and have been unable to replace it. Nomination agreements with RSLs are no substitute for owning your own stock. In the large metropolitan areas of this country there is – it is common knowledge – severe pressure on housing. How many 3, 4, 5 (or more) bedroomed properties do such authorities still own? I don’t have any exact figures, but anyone working in this field would surely agree that the answer is “not enough to meet demand.”

    Local authorities, the homeless and those who practice in this field actually have a common “enemy” – the government. Government policy since 1980 has created this depressing situation and it is the Government who must solve it.

    Reply
  2. Mike McIlvaney

    There is no excuse or justification for failing to house people in dire housing need (see circumstances pertaining to these individuals) for devising allocation schemes aimed at circumventing the homeless legislation or manufacturing and deploying schemes intended to defer or escape duty to take homeless applications (Birmingham’s so called “Home Options” scheme). The human impact of these endeavours should not be underestimated. These cases were but the iceberg’s tip. Resource concerns should be taken up with government not used as an excuse to victimise and abuse the most vulnerable people in our society. The authority has a responsibility, as have you and I, to comply with the law. Birmingham City Council has acted irresponsibly, unlawfully and reprehensibly towards families it is supposed to protect and serve. Now there is talk of further appeal. The authority would do better complying with the law and its money would be better spent dealing with homelessness in the city rather than fighting hopeless cases.

    Mike McIlvaney,
    Community Law Partnership.

    Reply
  3. contact

    I think I’m with Mike on this.

    There is absolutely no doubt that Authorities are desperately short of decent housing stock, particularly at the large 3 or 4 bed end. It is government policy that has created this situation and it is a government issue to solve. I don’t think anybody lacks sympathy for the situation that some local authorities find themselves in.

    However, as far as housing lawyers and the homeless are concerned, this is a judgment to cheer to the extent that Birmingham was a) trying to avoid its housing duty and then b) trying to create a hierarchy of housing need amongst the homeless to further delay fulfilling that duty in some cases. Inasmuch as this case presents a clear statement of the duty, it is a good thing for the homeless and useful for housing lawyers.

    To make a further appeal would surely be jaw-droppingly ill-considered.

    Nearly Legal

    Reply
  4. J

    I entirely agree that everyone – from local authorities to the Secretary of State via the general public – should comply with their statutory duties. I deplore any attempt to sidestep, postpone or otherwise avoid statutory duties particularly where those duties are owed to vulnerable groups and entirely agree that those who do deserve nothing more than a resounding defeat in the Admin. Court.

    However, that position is not inconsistent with also having sympathy for local housing authorities. Is anyone really surprised that – faced with demand that they cannot possibly hope to meet – some metropolitan authorities make poor (and unlawful) decisions? Of course resource constraints cannot excuse that behaviour (nor do I seek to do so) and, yes, I recognise (and deplore the fact) that resources arguments are oftened misused as a justification for poor or unlawful decisions.

    What I want is a situation where we (i.e., housing lawyers) don’t have to make duty Judge applications and don’t have to JR local authorities. Until local housing authorities are allowed to replenish their housing stock, this simply will not happen.

    Do either of you believe that there won’t be another high profile case such as Aweys 5 years or so from now? Of course there will be, because the pressure on housing authorities will continue to grow and demand will continue to outstrip supply. The real remedy is not JR victory after JR victory, but a change in government policy.

    And, with all that, congratulations to Mike on your victory!

    J

    Reply
  5. contact

    J,
    I don’t think we are actually disagreeing about anything, but your point about the ‘real remedy’ could and does apply to large swathes of housing law practice: homelessness, allocations, disrepair, security of tenure issues etc.. On that view, that our field of practice even has to exist is bad news for tenants.

    But doing what we can now, through JRs or other proceedings, to mitigate the bad/unlawful current treatment of tenants and homeless surely does not mean that any of us have lost sight of the broader question of policy, in fact quite the reverse. We know both the scale and the effects of the problems.

    I can’t think of a single tenant-side housing lawyer I’ve met who believes that their practice is actually a solution, rather than, at best, an amelioration. But, at a point where some councils are seeking to shift the burden of the problems they face onto the most vulnerable, yes, this is a victory (however limited and temporary) worth being pleased about.

    Reply
  6. Mike

    I agree with J that a solution to homelessness requires political will at all levels and hope I’m not so naive as to think that the odd case here and there will provide any long term solution. However since the decision of Collins J a year ago there have been, here in Birmingham, fewer telephone calls to judges from bus shelters, fewer (overt) refusals to accept homeless applications AND the council has changed its’ allocation policy. Oh, and as for the applicants and their families in the Aweys case, all save one have been suitably and permanently rehoused (albeit under threat of commital to prison of the Director of Housing). So, until the longer term solution arrives I must sadly remain ameliorator, firefighter, coalface worker etc. I hope we all agree that the issue needs to be tackled at all levels, and with the current meltdown in legal aid, are still all around in 5 years time to continue a constructive discussion. Mike.

    Reply
  7. Reg

    ‘Intent on suicide’. I think that just about sums it up.

    Anyone with a rudimentary understanding of the homelessness legislation understands that if accommodation is so poor that it would not be reasonable for the occupants to continue to occupy it they are, notwithstanding the roof over their head, statutory homeless (s.175(3)). Consequently, a duty arises to secure that accommodation is available for the person’s occupation (s.193(2)).

    But when does the duty arise? Well, when reading Part 7 of the 1996 Act I’ve never happened upon the concept that ‘secure that accommodation is available’ means homeless persons can stew for months on end in the very accommodation that was so deficient it caused their homelessness before alternative temporary accommodation is provided. It is not, after all, treated as accommodation in the statutory sense. It would surely be surprising if this was a difficult concept for homelessness managers to grasp.

    This state of affairs would perhaps not be so worrying but for the fact that Birmingham is the largest local authority with the largest number of homelessness applications in the UK. The homelessness question under scrutiny in Aweys turns on the symmetry in the way in which ‘accommodation’ is defined throughout the legislative scheme, including sections 175(3), and 193(2), as well as s.191(1). Accommodation, if it not reasonable to continue to occupy, can not be treated as available for occupation by the applicant, nor can it by definition be suitable accommodation (see paras 38 to 39 of the judgment).

    These are basic principles underlying the whole operation of Part 7. They have been settled for over a decade, and are understood and applied on a daily basis by any competent homelessness officer.

    I agree that Birmingham’s job in meeting housing duties is extremely difficult and being made more so by central government. (It is worth noting in passing however that Birmingham continues to enjoy – notwithstanding inner city clearance programmes and the reduction in stock through the right to buy – a relatively large stock, and half-decent turnover of council and housing association vacancies, when compared to the inner London boroughs). But are we to believe that these basis concepts are not understood by council members and senior homelessness staff in the largest housing authority in England?

    Many of those working with the homeless in Birmingham have long known the problems experienced by the homeless in the city: systematic gate-keeping through the discredited Home Options scheme, poor decision making, and unlawful allocations perhaps among the most notable problems.

    It is interesting that Mike reports a reduction in problems in the period since the first instance Aweys judgment. Community Law Partnership and Mr Luba QC certainly deserve congratulations for dispatching the Aweys appeal from whence it came. Yet those working with the homeless in the second city are left with genuine doubts about the ability of Birmingham Housing Department to give a lead on tackling homelessness.

    This is after all the department which not so long ago was awarded the dubious honour of a nil point Audit Commission assessment, and is currently headed by the charming Tory Councilor Lines. Not for John Lines caring sharing Conservatism. This enlightened soul, previously convicted of assaulting his neighbour with a wooden plank, was forced this week into issuing an apology after he described asylum seekers as scumbags.

    http://icbirmingham.icnetwork.co.uk/birminghampost/news/2008/02/06/tory-apologises-for-asylum-scumbag-remark-65233-20442566/.

    So what is the answer to transforming the fortunes of those at the sharp end of the housing crisis in the country’s second city? Well, current events at the council do not bode well. The ruling Tory/Liberal coalition believes the way to comply with equal pay legislation is to downgrade staff and cut salaries, while refusing to give women workers the full six years’ back pay to which they are entitled. Homelessness officers stand to lose over £2,000 per year under an imposed contract, whilst the very homelessness managers that wasted over £170,000 on court costs last year get a pay rise. Thousands of council staff, including housing officers, were forced last week into taking strike action. Pay cuts as a catalyst for excellence anyone?

    It beggars belief that Birmingham are seeking leave to appeal to the Lords, in the absence of any cogent legal argument. There is now talk of Birmingham lobbying the government for a change in the law. This reinforces the impression that their motives are not born out of ignorance of the law at all, but rather a desire to tackle their administrative difficulties by seeking to avoid their responsibilities to the most vulnerable. Surely the hefty legal costs incurred by Birmingham would be better spent on securing decent accommodation for the homeless and on ending the threat of pay cuts for front line housing staff.

    Reply
  8. contact

    Blimey, Reg.

    This is thoroughly depressing background and a reminder, if one were needed, of the importance of a functioning legal aid system. I agree that a further appeal to the Lords looks pretty desperate. I would hope, but with less confidence, that lobbying for a change in the law would also be unsuccessful. That is a worrying step.

    Good luck with what I take to be your own struggles with the Housing Department.

    Nearly Legal

    Reply
  9. Morrison Hall

    Poor local authority housing resources and poor employment practice contribute to the dire position in which our clients find themselves. It is fair to blame political trends and imperatives (right to buy, lack of investment in local authority housing) while hold authorities to account for unlawful decisions.

    As for the specifics, do not forget to credit the grimy miners at this particular coal-face: especially Messrs Nabi and Nicol, whose talents in combination with CLP’s determination achieved the all-important first instance victory.

    Reply
  10. contact

    You are quite right, I should have mentioned Mr Nabi as junior Counsel in the appeal. I thought I had mentioned Counsel for the applicants in my comments on the Judicial Review, but I’ve just checked and I didn’t. How remiss of me. So, belated congratulations to:
    Mr Zia Nabi
    Mr Joshua Dubin
    Mr Nicholas Nicol
    on the Judicial Review.

    Reply

Trackbacks/Pingbacks

  1. Aweys v Birmingham in the Lords date - [...] hearing of Birmingham’s appeal to the Lords from this Court of Appeal judgment is listed for 26 January 2009.…

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