Not reasonable but suitable

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.

About Giles Peaker

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, and still is Nearly Legal on Google +.

Posted in Homeless, Housing law - All, Various (non-housing) and tagged , , , , .

16 Comments

  1. Just how bad accommodation has to be for it to not be suitable under 188 and perhaps especially 193 is certainly not an easy subject and I agree that there will be many people in accommodation that they shouldn’t be in for only a few may ever a) know that they could ask the Local Authority to provide something better b) get assistance with such a request.

    Perhaps some sort of cosmic karmic revenge for Weaver and R v Southwark. Can’t have happy Housing advisers all the time can we?

    • But this isn’t just how bad s.188/193 accommodation has to be to be not suitable, this is that the very accommodation it was not reasonable for the applicant to occupy, such that they are homeless and owed the full duty, can be suitable ‘short term’ as 188/193 accommodation. What does ‘short term’ mean? We don’t know and ‘it depends on the case’. How the hell can you advise on that?

      There will be litigation, depend on it.

    • I agree, anything that isn’t concrete tends to be taking advantage of and I think that ‘short term’ will be the same.

  2. While I speak for myself and not the “unhappy” Birmingham Practice for which I work (we’re not, we just move on because now anything goes), I think your analysis hits both nails on both heads; this decision could have major implications and let us fully expect Birmingham to exploit, twist and react in an odd manner. Pushing Aweys aside to make Moran “fit” is deeply unsatisfactory and just plain wrong. Worryingly, it seems, with a small “p” to be a political decision. So whatever happened to the separation of powers and Albert Dicey’s rule of law?
    On the positive (like an elastoplast after a severe beating) at least the allocation point remains and, as a whole, Aweys has exposed Birmingham’s gatekeeping practices (which continues) and has ruled upon the same as unlawful(God Bless Justice Collins).
    The costs issue is to be resolved by written submissions.

  3. at least one of my clients has been told by a LA that his statutorily overcrowded accommodation is not grounds for transfer. still, that’s what we’re here for!

    very gald the idiotic situation re women’s refuges is resolved but could this be housing’s stack v dowden?

  4. Like others I am surprised by what seems a very creative interpretation of section 175(3). I’m left wondering why an authority would choose to allocate resources to secure alternative accommodation, at least before a claim is issued. Perhaps the most significant factor determining whether those left homeless at home are secured a suitable alternative will be whether they’re one of the lucky few to have a good housing solicitor. What with Ahmed, a bad few weeks for homeless persons. The safety net was creaking. Now its been significantly lowered.

  5. What strikes me as daft is that Birmingham accepted a duty in the first place, bearing in mind the prevailing circumstances in Birmingham with overcrowding. Section 177 (2) wasnt utilised properly, or at all.

  6. Mr Ali was accepted as homeless when he lost private sector accommodation. He was offered accommodation by Birmingham, accepted it and sought a review of its suitability which succeeded. Birmingham then just left him in the unsuitable accommodation. JR was issued and Collins J granted a mandatory injunction. S177(2) is not relevant to his situation.

    • My understanding was that Mr Aweys, Mr Adam, and Ms Sharif were all accepted (in part) due to being overcrowded. If that wasnt the case for Mr Ali, point taken, on his case.

      But if the above info is correct about Mr Aweys, Mr Adam, and Ms Sharif then my point still stands, and Section 177(2) was relevant to their applications and Birmingham got themselves in the mess in the first place (with those cases).

  7. After chatting to the above Brummy solicitor on Friday about this case I finally read the opinion on Sunday.

    Maybe it’s a symptom of my having worked with homeless women for 14 years before doing legal help, that I actually was so relieved by the Moran decision that it coloured my view of the Birmingham implications and consequently I dont feel so doomladen as others.

    In terms of the Birmingham decision, Im still trying to work it out … but, in a pragmatic way I didn’t think that was necessarily bad for the client (don’t all hit me please)

    The problem with the Aweys decision from my view – was it appeared to me to stop the possibility of being ‘homeless at home’

    As it’s often clients who want the preference, but dont want temp accom (who would!) I felt that stopping homelessness as home from being an option was a bad thing (and still do)

    The Lords opinon seemed to have grasped this point – and emphasise the need for agreement not compulsion. Naive I may be, but they seemed to have a very good grasp of the conflicting issues.
    And Birmingham can’t discriminate between homeless clients in the way they were doing.

    Working nationally I don’t think *that* many councils *do* use homelessness at home – as that still effects their homeless stats but this clearly states they can’t be treated less favourably than someone in temporary accommodation.

    I am aware of an Islington policy that differentiates between homeless applicants in temp accom and when they get notice on their temp accom ….

    Sooo roll on lots of suitability cases, but I think there is still a lot in this judgement that is good (call me pollyanna)

    • Cait, I agree on Moran, for obvious reasons, but I think you’ve got your wires crossed on Aweys/Ali. It was Collins J in the first JR who said ‘agreement not compulsion’. What their Lordships have done is okayed compulsion ‘for a short time’ or whatever period it is until the property is no longer ‘suitable’ for them to continue to occupy, which the local authority decides. Does that change your opinion at all?

  8. grr
    lost what I posted.

    Having read the Lords opinion but NOT the Court of Appeal judgement – yep that makes a difference.

    I thought the phrase was specifically part of the Lords judgement. (even with it – I felt it was still wooly)

    I had thought that the Court of Appeal judgement would result in Homeless at Home not being available to use for *clients* and had been concerned about that.

    Cait

  9. I struggle with the idea that the homeless at home accommodation is to be treated as S193(2) accommodation . It cannot be S 188 the duty is accepted.

    By its very nature it is accepted that it is not reasonable to continue to occupy – hence if the occupier decides , I don’t care what the local authority thinks I can’t stay here a moment longer and moves out the authority will have a duty to secure that suitable accommodation is made available .

    The occupier cannot be found to be intentionally homeless whether it is treated as Section 193(2) accommodation or simply as accommodation not so bad that the immediate duty is not triggered and therefore Section 191 nor 193(6)(b) can bite

    So Baroness Hale has potentially revived the old homeless/intentionality divide from Puhlhofer days but in the context of discharge of duty rather than whether a duty is owed . The homeless at home cannot force the authority’s hand on the provision of suitable accommodation without difficulty or without making themselves roofless .

    This is a very bad decision – unworkable in practice ( how will we know when the cannot stay one more night has been reached ? ) , writes indefinitely into Section 175(3) and ignores Section 175(4) .

    Wouldn’t it just have been much easier to accept the reasoning behind Sidhu that neither Puhlhofer or Awua sought to disturb , that crisis accommodation is not accommodation within the meaning of the Act ?

  10. True and a very bad one !

    One other point strikes me , if the local authority is to be assumed to remain under an immediate Section 193(2) duty – we will have the absurd situation of the authority making an ” offer of acccommodation ” of your own inadequate home ! – how can they said to be securing anything ?

    So the occupant will need to make sure he or she ” accepts ” to avoid discharge under Section 193(5) before moving out and forcing the authority’s hand !

    It is Alice in Wonderland .

  11. Was on Garden Court training yesterday about this – the ‘offer of your home’ point was made ….

    as was the issue that if they accept your accommodation is ‘not reasonable to occupy’ (but ok as temporary accommodation)

    Then you could not be intentionally homeless if you gave up (ie NTQ) accommodation that is not reasonable to occupy ….

    All very surreal.

    (urm and if JS was delivering the training then my comment is for the benefit of others ;) just occurred to me what JS possibly stands for)

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