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31/07/2009

Not just suitable but properly so

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.

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.

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