When does the main housing duty under s. 193, Housing Act 1996 to provide suitable accommodation to ‘successful’ homeless applicants, who currently are in a property, take effect? Such a simple and important question; such tortured authorities, inflected by the sharp end of the housing crisis. Is the duty to provide suitable accommodation at once, or within a reasonable period or is the duty to take all reasonable steps to secure an alternative property? The authorities are all over the place on this question. However, if it is the first, then the question is really whether the court will grant relief, on the basis that a court cannot force a public authority to do that which is otherwise impossible in face of the housing crisis? It is for the authority to show, however, that impossibility.
In R(M) v Newham LBC (2020) EWHC 327 (Admin), these were the apparently vexed, but important, questions for Linden J, in circumstances which the evidence suggested were pretty awful (and I wonder if Newham might reflect that this was a poor case to run, even though the question of law requires authoritative judgment). On 19th December 2017, Newham offered M and the household a four bedroomed property which they regarded as suitable accommodation, in partial satisfaction of the Part 7 duty. M’s daughter has a range of health needs which required her to have a particular type of bathroom. M accepted the offer and requested a review. The evidence on review established that the property was not suitable, and Newham accepted this, at least by 22nd February 2018 (when they accorded M emergency status on the housing register), and definitely on 27th February 2018, when, on review, it was concluded that the property was not suitable. There then followed further evidence about the property’s unsuitability, putting it mildly, for example that “I feel this is something that needs to be dealt with urgently for (A’s) health and hygiene needs” (Linden J’s emphasis). This subsequent evidence was contested by Newham on the basis that it was based on the household’s evidence, and was not medical opinion – a submission which Linden J properly swept aside.
Newham’s submission on the question of timing was that “the claimant in the present case needs to show a deterioration in A’s circumstances and that the passage or elapsing of time is not sufficient to render suitable accommodation unsuitable”. That submission was inconsistent with the House of Lords decision in Ali v Birmingham CC (2009) UKHL 36 (and other authorities), in which it was said that Birmingham were not entitled to leave homeless families in their current accommodation indefinitely: “What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term”.
Not unreasonably, in the face of contradictory and unclear authorities, Linden J put his decision on alternative bases. He first held that Newham had been in breach since 27th February 2018 (the review decision), given that the review decision had found that the property was not suitable (ie not suitable on a short-term basis). They might have said that M was homeless (because it was not reasonable to continue to occupy the property in the long-term), but the property was suitable in the short-term. They did not (and, to be fair, I’ve never seen such a nuanced review decision). There is an important discussion by Linden J (at (89)-(91)) about how to read the actual disposition of the cases in Ali, and the assumption given that it was an appeal on the point of principle (the meaning of accommodation).
Secondly, and most importantly, Linden J sided with the authorities which hold that, once it is decided that the applicant’s current accommodation is not suitable, the authority are in breach of the s. 193 duty. Here there is inconsistency in the approach taken by different members of the House of Lords in Ali. Lords Hope and Scott appeared to side expressly with the reasonable period analysis (ie the authority have a reasonable period to provide suitable accommodation). However, Linden J noted that they also agreed with Lady Hale, who gave the leading judgment), in which “… it was implicit … that reasonable delay in finding alternative accommodation would only be permissible if the accommodation was regarded as suitable for the time being, and that the housing authority would otherwise be in breach of its duty under section 193(2)”.
Thirdly, even if he was wrong on that question of law and Newham did have a reasonable period, they had breached even that duty. The accommodation needs of the household needed to be addressed as a matter of urgency, and were “intolerable”; and, further, two years had elapsed since the review decision. In addressing the factual question as to whether Newham had had taken sufficient steps to identify alternative accommodation for the household, somewhat shockingly given the circumstances and medical evidence, it was found that “no real coherent thought has been given to their situation and that very little has been done to assist them” (101).
Linden J spent some considerable time assessing Newham’s evidence. The evidence provided by Newham was given by their temporary accommodation team manager (not their procurement officer), who did not exhibit documents other than Newham’s policies; whose evidence was described as vague (105); misstated the household’s requirements (109); implicitly criticised the household’s failure to bid on alternative properties even though he himself was unable to consider the suitability of those properties and the successful households for those properties had higher priority (108); whose evidence about the availability of alternative properties was “not credible” (110 – cue shocked emoji); appeared to suggest that only one private landlord had been approached, without giving details about those negotiations or supporting documentation (111); and alleged offers had been made to the household which had been rejected – but Linden J preferred M’s evidence that he had been told that the bathroom facilities had not been appropriate, as that evidence had not been contradicted by Mr Lindsay in his second witness statement (113). And, at (107)
Even before considering the steps taken, then, the defendant’s own evidential position was and is that the current accommodation was and is unsuitable and no suitable alternative accommodation has been identified by it or offered to the claimant. There therefore does not appear to me to be any decision of the defendant, whether express or implied, which it is able to defend on the basis that I may only interfere on public law grounds
A further offer had been made after the claim was issued, but this offer was of a property on a nightly let basis and was said to be “not capable of full adaptation” (114):
On 13 December 2019 (M) received a call from a person called “Nancy” who said that she would interpret his request to view the property as a refusal. The claimant’s solicitor then emailed the defendant to make clear that he was not refusing the offer and that he wanted to view the property. The solicitor also asked relevant questions including as to the cost of the property, whether it was in the E+ category, the size of the bathroom and whether the defendant was willing to install a bariatric toilet. He received no response to this email and nor did the claimant receive a response to a subsequent email, dated 16 December 2019, in which he gave his account of the conversation with Nancy and emphasised that he was not refusing the offer and merely wanted to view the property.
Linden J, who appears by this stage to be a master of understatement, suggested that did not show Newham “in a favourable light” (115)
I appreciate that affordable housing which meets A’s needs may not be in abundant supply, that the defendant has limited resources, and that there will be higher priority applicants, as the defendant’s policies indicate. But, as I put to Mr Evans and he appeared to accept, there is a difference between stating these generalities in a policy and proving that, notwithstanding reasonable steps having been taken to secure suitable alternative accommodation in a particular case, this is not proved possible in a period of two years and will not be in the near future.
There then followed the question of relief. Unusually, Linden J made a mandatory order requiring Newham to provide suitable accommodation within 12 weeks to the household. This was particularly in the context of what was perhaps designed as a stinging rebuke to Newham (but also really something of an understatement given the evidence):
I have found the evidence as to the defendant’s efforts to find suitable accommodation unsatisfactory to the point at which it does not appear to be taking the claimant’s case seriously. Nor am I satisfied on the evidence that it is unreasonable to expect greater efforts or that it is impossible or unreasonably difficult to find suitable alternative accommodation for the claimant. Nor has any suggestion been made that the defendant will redouble its efforts and/or that suitable accommodation will be made available to the claimant in the near future. (120)
A general comment -Our experience ( we are situated within a children’s hospital) is that where adaptations are required, as in this case, suitable accommodation is rarely if ever to be found within the private sector due to their cost linked to a low security of tenure which can make it EA unreasonable to install. Often only social housing through allocations allows for a home to be or made to be suitable. Such circumstances are all too common in our experience including Children who cannot be discharged home.