Babes out of the Forest

The out of borough temporary accommodation position continues to get worse, with increasing numbers of homeless shipped out of borough (and for London councils, often out of London). London Councils (pace Nzolameso v Westminster CC ) have put the DCLG ‘Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012‘ at naught.

Confirmation, if any were needed, is to be found in LB Waltham Forest’s current consultation “Changes to temporary accommodation location guidelines“. The current guidelines set out who, as a matter of policy, will usually be found in-borough temporary accommodation, who will be found temporary accommodation “in a borough which is one hour’s travelling distance on public transport from LBWF”, and then the rest, who will probably be offered temporary accommodation wherever (anywhere).

The proposed new guidelines involve two groups – those who will “where possible, be offered temporary accommodation in Waltham Forest, adjacent boroughs, or boroughs in the East London sub-region” and those who, well, won’t: “All other homeless households would be offered temporary accommodation wherever the borough is able to procure it, provided that it is suitable for the household’s needs”.

Note that ‘provided that it is suitable’ – added, one suspects, by Waltham’s lawyers. We’ll come back to this.

So, currently, Waltham has a policy with a Group A – accommodation in East London. Those are:

a child in secondary school in their final year of key stage 4 (generally year 11)
a child who has a Statement of Special Educational Needs
a child who is the subject of Child Protection Order Plan
someone who is receiving NHS treatment for mental health problems other than from their GP and/or is on the Care Programme Approach
someone who is caring for another person in the borough, subject to certain criteria.

And Group B – accommodation one hour away by public transport:

a child in primary school in LBWF or neighbouring boroughs
a child in secondary school either in LBWF or neighbouring boroughs
somebody in permanent or settled employment
somebody who is receiving medical treatment that can only be provided by a specific medical facility
Lone parent households with a baby under 6 months at the time of allocation

And a Group C – everyone else, “who are offered temporary accommodation where the borough is able to provide it.” (Meaning out of borough and quite probably out of London).

The consultation proposal is to drop Group B entirely, with an adjustment to Group A. So Group A (who “would, where possible, be offered temporary accommodation in Waltham Forest, adjacent boroughs, or boroughs in the East London sub-region”) would be:

a child in secondary school in their final year of key stage 4 (generally year 11)
a child who has a Statement of Special Educational Needs
a child who is the subject of Child Protection Order Plan
someone who is receiving NHS treatment for mental health problems other than from their GP and/or is on the Care Programme Approach
someone who is caring for another person in the borough, subject to certain criteria.
someone who is receiving medical treatment that can only be provided by a specific medical facility

Everyone else would be expected to go wherever they are sent, ‘provided it is suitable’. That would include lone parents with children under 6 months old, families with children in local schools (unless in year 11), or someone in employment in the borough.

Waltham are perfectly clear that this is about restricting costs.

Homelessness services and temporary accommodation are paid for by the Council’s General Fund and currently cost over £3.8 million annually. There has been a sharp rise in homelessness presentations in Waltham Forest over the past year, largely due to local increases in rent and to welfare benefit reforms. Rent increases also mean that temporary accommodation for homeless households is becoming scarce and expensive, both within Waltham Forest and in the surrounding areas.

Because of this, there is a risk that the annual cost of temporary accommodation will increase significantly, with a possible overspend of £861,000 in 2014-15, and additional expenditure of £2,440,000 in 2015-16.

Of course, this policy (both current and proposed) is contrary to the Government’s 2012 statutory guidance. For example:

47.Location of accommodation is relevant to suitability. Existing guidance on this aspect is set out at paragraph 17.41 of the Homelessness Code of Guidance offers. The suitability of the location for all the members of the household must be considered by the authority. Section 208(1) of the 1996 Act requires that authorities shall, in discharging their housing functions under Part 7 of the 1996 Act, in so far as is reasonably practicable, secure accommodation within the authority’s own district.

48.Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.

49.Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.

The proposed policy simply tears up any considerations of employment, schooling, established links with doctors, social workers or other support, at least as a matter of policy priorities. It also, it should be noted, makes no mention at all of taking into account distance and ‘nearer’ suitable accommodation (though as it stands after Nzolameso, that latter is rather an empty exhortation anyway).

Let us just pause there for a moment and take stock. Waltham are proposing that, as one example, someone who has secure employment in the borough will not, as a matter of policy, be considered to have a need for nearby accommodation, and could be accommodated anywhere ‘where the borough is able to provide it’, quite possibly, indeed probably, too far away for the person to keep their job.

Of course, this is quite probably unlawful. Waltham have been here before – in Arfon Abdi v LB Waltham Forest. Bow County Court 2 July 2012, where Waltham’s attempt to tell a homeless woman, whom they proposed to ship two and a half hours travel away, that she should just find another job nearer the accommodation came to grief badly on s.204 appeal. That appeal found that Waltham had failed to consider travel time to work as a relevant factor, yet now Waltham propose to institute this same failing as a matter of policy.

I would quite happily declare both the existing policy and the proposed replacement as very likely to be unlawful, except for the lawyer’s codicils – people will have to go where they are sent, ‘provided it is suitable’ and ‘It is important to note that a household’s individual circumstances (i.e. the household’s needs) will always be taken into account when making an allocation of temporary accommodation’.

The trouble is that either the policy or those codicils are meaningless. If – as is the legal requirement – the assessment is of suitability of proposed accommodation in terms of the specific individual circumstances of the applicant and household, then the policy/guidelines are a nonsense and cannot be allowed to have a bearing on any individual decision.

If, on the other hand, the policy/guidelines are to be followed, then they clearly override any individual assessment, by setting a presumption that out of borough/out of London is suitable unless the applicant is in Group A, or can somehow establish themselves as exceptional to the policy presumption – and in that, employment in the area, as one example, has already been ruled out.

And of course, if there is to be adequate consideration of individual circumstances, Waltham can have no idea of the likely savings, if any. The presumption on their part clearly is that Waltham have somehow already been favouring people for whom out of borough/out of London accommodation would be perfectly suitable (such as those employed in the borough, or lone parents with a child under six months). But they have no way of knowing.

The cynical view is that Waltham will operate the policy, without the lawyer’s codicils, and will indeed concede or lose some challenges to individual decisions, banking on the fact that most homeless applicants aren’t represented and won’t fight a decision.

Just as a last reminder that the financial and housing stock difficulties facing Waltham Forest cannot be determinative of its statutory duties, the Court in Arfon Abdi concluded that, while the scale of those difficulties was huge:

the Respondent fell into the error of allowing those difficulties to be determinative of its decision in this case. In so doing it failed to consider the suitability of this property for this applicant.

Waltham now appear to be turning that error into policy.

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 and tagged , .

2 Comments

  1. Must as I don’t like it, I only see two practical options for the next few years.

    a) Stop people moving to London from the rest of the UK and the world – so an end to the free movement of labour.
    b) Except that people who are unable compete with the above for housing, will have to leave London.

    The London Councils are being expected to do the impossible, while the government will not decide between the two above chooses.

  2. Pingback: Babes out of the Forest – NearlyLegal | Current Awareness

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