Suitability and s.193 accommodation

Anon v LB Lewisham, Central London County Court, 5 July 2018 (Transcript of Judgment here)

This was a s.204 appeal of a s.202 review on suitability of temporary accommodation provided to the appellant by Lewisham. This was originally temporary accommodation provided under s.188 Housing Act 1996, but following Lewisham accepting the full housing duty, it became accommodation provided under s.193 HA 1996.

I won’t dwell on the actual issues raised on suitability (save for one, which was relevant to a Children Act/Nzolameso ground of appeal), as the review decision was upheld on those points (although quashed in the end), but what was raised centrally in a ground of appeal was that the review officer had wrongly created a category of s.193 accommodation as ‘temporary accommodation’ with, it was argued, a lower standard of suitability ascribed to it.

The appellant’s case is that the reviewer went wrong because he created a category of temporary accommodation which is not available under the statute and, in doing that, applied a lesser standard to the question of suitability than he was entitled to do. The argument continued that, in having regard to this accommodation as temporary, it was therefore not being considered as suitable pursuant to the main housing duty under s.193(2). The respondent’s position included the proposition that this was only temporary accommodation and so it really should only be treated in that way, but also the respondent’s position included that it was relevant to take into account the duration of time for which the accommodation was being provided for, it was relevant to see it as accommodation that was not intended to be the absolute fulfilment of the duty, in the sense that it would trigger the potential for the duty to come to an end as a result of, for example, the offered accommodation being rejected, and so that it was appropriate for the reviewer to bear in mind that it was temporary accommodation.

The Circuit Judge held

for the purposes of fulfilling the section 193 duty there is no separate category of temporary accommodation which might lead to a different and less rigorous suitability requirement.

So any argument from a council that it was ‘just temporary accommodation, so to be expected to be of a lower suitability standard’ would not be right. The suitability standard for all s.193 accommodation was the same.

However, it was relevant to consider the amount of time for which the accommodation was to be made available. Following Codona v Mid-Bedfordshire District Council (2005) HLR 1, the Circuit Judge found that it was.

This does not mean that there is a separate category of temporary accommodation, there is not, but it means that, when considering suitability, a local authority, or indeed a person to whom the duty is owed, can take into account the period of time within which that accommodation is going to be available.

A phrase from the review decision, “would have been reasonable for you and your family to have continued to occupy for the period during which you can have expected to have lived there” was an accurate description of the correct test.

The ground on which the appeal succeeded was the Nzolameso ground – on para 27 of Nzolameso v City Of Westminster (2015) UKSC 22

“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.”

This regard requires an identification of the children’s needs “and then express consideration of the duty to safeguard and promote those needs”.

The issue was raised in relation to the consideration of the review decision’s address to the question of travel time to two of the children’s schools and also the impact on the youngest child who had to accompany the parent on these journeys.

Necessarily, a long and complicated journey will have an impact on lateness, but also a long and complicated journey is problematic of itself in terms of the child’s development and tiredness but the review officer did not pay that any regard to that at all, and also he failed in any way to have regard to the impact on the son in relation to that journey, it obviously being a necessary inference that the older children were not going to be able, at primary school age, to make that journey themselves and so the appellant would have to bring her son along with her.

The journey, as set out in the review letter, was as follows:

The journey to your children’s school from your temporary accommodation, should you leave at 6.57 a.m., would generally have taken you around eighty minutes. In summary, this would have required a two-minute walk from the temporary accommodation to the 314 or 233 bus stop, a six-minute bus journey to Eltham and then a six-minute walk to take a South Eastern train to London Bridge, which would generally have taken you a further twenty-two minutes. You would then have needed to take a Northern Line train to Clapham Junction (twelve minutes) and then a twenty-minute walk to your children’s school. You would have arrived at approximately 8.17 and in time for your children’s schooling.

The review decision didn’t make any address to this save to say it didn’t make the accommodation unsuitable.

The Circuit Judge noted that this was a twice a day journey for the school age children and a four times a day journey for the mother and youngest child.

A journey of this type of difficulty, going into the centre of London during very busy times for the transport system and then going out again to be able to get to the school, that difficulty of journey might well have been appropriate or manageable for a very short period of time; it becomes potentially less manageable and less appropriate as time goes on, and if it is intended that children are going to have that journey for a number of years, as they are starting at and then developing through their primary school years, then there needed to be express consideration of the difficulties, or potential difficulties, in relation to that, express consideration as to whether that was something that needed to be thought about further and they needed to be safeguarded in relation to the problems associated with that, both in terms of their development and in terms of their ability to have a fulfilling life within and without school as well, and I think the reviewer failed in that regard.

Comment

The decision on s.193 suitability is surely right. There can be no separate subcategory of ‘temporary accommodation’. The ‘length of time’ being a factor in assessing suitability will remain contentious, I suspect. It appears that in this case, it was envisaged by the council that the appellant may be in the accommodation for years (as per the Nzolameso discussion), and it is hard to see how the stay being conceived of as ‘temporary’ can make any meaningful difference to suitability when the period involved is so long. A stay for a matter of days or weeks, perhaps, but not a year or more.

The regard to children point is worth attention. This is only a County Court appeal, not Court of Appeal, but it strikes me as setting out the consequences of the need to have regard to the children clearly and effectively. And as the number of out of borough/cross London accommodation placements continues to rise, faster than ever, this is significant.

In this instance, the travel time to the childrens’ school was simply not addressed in relation to its impact on the children. This review decision is far from alone in that.

Nor, I would suggest, would a simple assertion that the children could move school to the area of the accommodation suffice, not without an investigation of the availability of places, and any other support that might be in place. Review letters simply stating ‘they’ve got schools in Birmingham’ with nothing more (yes, these exist) would surely not meet the due regard to the needs of children test.

May I also say that it is a pleasure to see the Circuit Judge, HHJ Parfitt, spend considerable care to make the judgment as clear and comprehensible as possible to the appellant, who was there, and also to give the outcome at the start rather than make her wait. While explaining the intricacies of s.193 obligations might, in the end, be impossible to put wholly in lay terms, the judgment strikes me as a model of clarity and decency in the way it is expressed. There should very definitely be more of this.

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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