The facts in Nzolameso v Westminster CC are pretty unremarkable, but the effects of the Court of Appeal’s judgement are likely to reverberate through every new homelessness application, especially in the London area.
Ms N is a parent of five children, who were evicted from their 4 bedroom house in Westminster in November 2012 following imposition of the housing benefit cap. WCC accepted the full housing duty towards Ms N and offered a five bedroom house as temporary accommodation in Bletchley, near Milton Keynes (approximately 50 miles away from Westminster). The Council considered this offer reasonable given the severe shortage of both temporary and permanent accommodation within the borough. Ms N refused it, stating that it would disrupt the children’s schooling and that she would be deprived of the important emotional and practical support of her friends in the Westminster area, with whom she had built up links over 4 years.
Ms N argued in the County Court that WCC failed to consider whether there was anything closer to Westminster from the available housing stock that might be suitable for Ms N and her family, in order to bring it into line with its duty under s.208 of the Housing Act 1996. HHJ Hornby nevertheless dismissed that appeal and the CoA heard the second appeal on 29/9/2014.
Here, Ms N submitted that by asking itself the wrong question, namely whether it was reasonable for Westminster to have offered accommodation out of borough, the Council had short-circuited any enquiries that might have been made into the available housing stock (including stock on the open market) to make it more reasonably practicable for Ms N to accept. WCC’s response was that the only relevant question for the reviewing officer was whether the offered property met her needs and that the Council’s resources and forecasts of likely future demand were relevant when deciding whether an offer was reasonably practical (relying on R (Calgin) v Enfield LBC).
The Court found that to expect a local authority to search stock within its own and neighbouring boroughs until a suitable match was found, without regard to the needs of present or potential applicants, placed too heavy and disproportionate a burden on its resources. This also meant that there was no requirement on the reviewing officer to explain why this property had been offered in preference to any other property that might be available, nor was there any reason to believe that the Council’s resources had changed substantially between the dates of the initial and the review decision. The appeal was therefore dismissed.
While at the outset I noted the impact this decision was likely to have on future discharge decisions, the judgement leaves a number of unsatisfactory loose ends. For example, paragraph 10 of the judgement reads (in connection with s.208):
Accordingly, although the section reflects a desire to ensure that the homeless are accommodated within the local authority area in which they have been living, it recognises by its very terms that authorities cannot always achieve that objective. The question raised by this appeal is what factors can properly be taken into consideration by a local housing authority when deciding whether it is reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that, as in the present case, the accommodation may be of no more than a temporary nature.
Does this mean that when the issue is discharge by way of permanent accommodation, we can expect Courts to be more critical of a decision to locate out of borough? I’m afraid I do not follow the logic of such an inference. If an applicant is expected to establish roots in another (distant) area, it is more reasonably practical to do so if that placement is not temporary. Surely therefore in cases of discharge under s.193(7), the existence of prior links with the borough should be less pre-eminent?
Secondly, local authorities cannot discharge their duty in a routine and unthinking manner (paragraph 20), which seems very difficult to prove when reviewing officers can be assumed to have had regard to their own resources, projections, forecasts etc. when producing their decisions.
As a footnote, we have been shown a ‘companion’ decision of the same Court in Hegab v Westminster CC (B5/2014/1528 (A)). The issues on appeal were similar, except that Ms Hegab was offered accommodation in Newham. However, the appeal became academic following a burglary at the property, as a result of which the applicant was offered accommodation in Redbridge.