World enough and time – suitability, distance and time

Barakate v LB Brent. County Court at Central London. 16 October 2016 (copy of judgment)

A section 204 Housing Act 1996 appeal of the suitability of LB Brent’s offer of private sector accommodation to Mr B of a property in Birmingham. Mr B, his wife and three daughters were in temporary accommodation in Brent, a full s.193 housing duty having been accepted by Brent. In 2014, an offer of accommodation in Birmingham was made. Mr B sought a review, which upheld suitability. A s.204 appeal was settled on the basis of a fresh review. That review decision of May 2016, again upholding suitability, was the subject of the present appeal.

It was agreed that the property in itself was suitable, as a three bedroom property. The sole issue was the location.

Mr B’s objections to Birmingham were that: Prior to the first review in 2014, he had been offered employment near Brent working for a company that supplied equipment for caterers. Mr B’s native language is Farsi with a second of Arabic and both those languages were valued by his employer in marketing to their customers. Secondly, one of Mr B’s daughters was in the middle of her GCSE course and due to take her exams in less than a year, making a change of school disruptive.

Brent’s policy on offering in-borough accommodation provided that employment could be a reason for an in-borough offer if for 24 hours a week and for over 6 months. Mr B worked for 24 hours a week, but it was recent employment, Brent found, and he could get a new job “through an employment agency such as www.indeed.co.uk” (sic). While Brent’s officer did acknowledge that Mr B’s employer mainly supplied clients who spoke Farsi or Arabic, Mr B could be expected to speak English competently so as to get a different job.

The policy on disruption to children’s education was only concerned where exams were within the next 6 months. Noting that some disruption may be caused to Mr B’s daughter, Brent observed “having secure affordable accommodation is important to the well being of children and must precede most other considerations” – which is, as the court tartly observes, “a proposition which could effectively discount the educational needs of a child in any situation where an out of borough placement is offered”.

Brent’s decision made no specific reference to the DCLG Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012, though it stated the Guidance was considered. Paras 48 to 50 of the Supplementary Guidance state:

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.

50. In assessing the significance of disruption to employment, account will need to be taken of their need to reach their normal workplace from the accommodation secured.

Mr B appealed, arguing:

  1. That Brent failed to have regard to the Supplementary Guidance
  2. That there was no evidence that Brent had investigated the availability of affordable accommodation in their area
  3. Brent failed to make adequate inquiries about the extent of the disruption to Mr B’s daughter, while taking account of an irrelevant consideration, the supposed lack of affordable accommodation in or near Brent.
  4. There was an error in law Brent’s treatment of Mr B’s employment, as Brent only considered his benefit income at the time of the decision, and not his employment income to be.
  5. There was a failure by Brent at the relevant time to make adequate investigations into Mr B’s employment income and the effect on affordability.

Brent’s main argument was quite simple. The Supreme Court in Nzolameso (our report) had said that a local authority should have a clear policy about out of borough and out of London placements. Brent had a clear policy and had applied it so “neither their decision making process nor the finding of suitability in this particular case can be challenged”. The was a further witness statement with exhibits from the review officer as to the manner in which the review had been conducted, including information not mentioned in the review. As we will see, this might not have been the best of ideas.

On grounds 1 & 2, considered together, the Court held that, following on from the Supplemental Guidance:

“the concept of suitability can be see to be not an absolute one, but a relative one, depending on the availability of something closer. This relative suitability must, as I see, have a further important consequence. As soon as one allows the test of suitability to include this relative element, it seems to me inescapable that in cases of far away placements, the test should also include some consideration of the timescale within which more suitable accommodation might be found”.

For example, a family needing a 6 bed in a London borough is offered a place in Carlisle. Without some perspective on how long it would take to find somewhere suitable closer, it is impossible to judge hether, on the day, the Carlisle place is suitable or not. If it may take years then Carlisle is probably suitable, despite the disruption to the family, but if there is a reasonable chance somewhere more suitable would turn up in a month or so, then accommodation in Carlisle “would usually not be suitable”, even if on the day it was all that was available.

Where placements are within a reasonable distance, the timescale factor may make no difference, but where didtance means the rupture of family’s medical, educational, employment and social connections, it is only possible to assess suitability with the benefit of some indication of “how long it would be for something better to turn up”.

No such investigation had been carried out by Brent, even though procurement documents exhibited to the review officer’s statement showed Brent’s officers considered good potential for affordable rent properties in Greater London, including N3, MW2 and NW11. Brent’s decision was based solely on availability ‘on the day’, with no inquiry into the chance of something more suitable turning up in a reasonable time.

The appeal succeeded on grounds 1 and 2.

Ground 3  would not have succeeded as a sole ground. The unavailability of accommodation in Brent – if established – would not be an irrelevant consideration when looking at Mr B’s daughter’s educational needs. Given the length of time before her GCSEs, Brent’s decision could not be invalidated without some other error of law.  But there was the same error – a failure to consider whether more suitable accommodation might be available in a reasonable time. On that basis, ground 3 also succeeded.

Grounds 4 and 5

There was no consideration in the review decision of whether Mr B’s new income from his employment would change the position on affordability.  But no information on that income had been provided to Brent. Ground 4 therefore failed.

However, Brent’s officer had been told of the employment and had not made any inquiries as to employment income, which may have made a difference to affordability of accommodation in or closer to Brent. This was a significant defect. Ground 5 succeeded.

Review decision quashed, and ‘with considerable regret’ a further review ordered.

Comment

Cat -> Pigeons.

This not only makes a mess of Brent’s ‘out of borough/out of London’ policy, but may have implications for other such policies, like Westminster’s new one. It is, of course, only a County Court s.204 appeal, but has weight for Central London County Court, where all London s.204 appeals are held.

I wonder if this will go to the court of appeal? The idea of suitability relying on a combination of both distance (meaning social, education, personal disruption) and likely ‘time to wait’ for a closer alternative is  strong one, on the face of it. And certainly, the Supreme Court in Nzolameso was concerned with minimising distance and disruption, as per para 27

The question of whether the accommodation offered is “suitable” for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally. In my view, it is not enough for the decision-maker simply to ask whether any of the children are approaching GCSE or other externally assessed examinations. Disruption to their education and other support networks may be actively harmful to their social and educational development, but the authority also have to have regard to the need to promote, as well as to safeguard, their welfare. The decision maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision.

There remains much to play for in the London councils attempts to shift their homeless out to the cheapest regional location available at any given moment. A ‘clear policy’ may not be a defence, unless the policy actually deals with real issue of suitability, not just a generalisation about affordability.

 

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 +.
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