Escott, R (On the application of) v Chichester District Council (2020) EWHC 1687 (Admin)

A judicial review where the relevant parts played out in the early stages of the pandemic lockdown, and where the central question was whether self contained accommodation provided without a fridge, cooker and bed, was suitable within the meaning of section 206 Housing Act 1996, such that interim relief could be ordered.

Mr E had applied to Chichester as homeless. According to the judgment

The claimant was born on 11 November 1988. It is an important part of his background that he was a member of the traveller community and at times was itinerant and without any fixed abode, but, in June 2019, he was admitted to hospital as a result of suffering an assault in which his jaw was broken. Unfortunately, he suffered complications from the operation to fix his jaw, as a result of which he needed to be admitted to the intensive therapy unit, having developed collections, angina and sepsis. Then, to make matters worse, whilst he was in the intensive therapy unit, he developed aspiration pneumonia. He was in hospital for a significant period of time and, upon his discharge, it was clear that he had ongoing medical needs, including the need for therapy and continuing medication.

It should also be noted that there is a background past medical history of sciatica, substance misuse, involving ketamine and cocaine, excess taking of alcohol, whereby he needed to be admitted on a previous occasion for detoxification, and also a smoking habit.

In March 2020, Chichester decided he was not in priority need and notified him that its duty under s.189B(2) Housing Act 1996 was at an end, although it appears that no steps were taken to end Mr E’s temporary accommodation in a B&B at this point (I am guessing due to the onset of lockdown).

In April 2020, Mr E approached a organisation called “Friends, Families and Travellers”, and on 16 April 2020 a review request was submitted. This, Chichester said, was out of time. Mr E then instructed solicitors, who sent a judicial review pre-action protocol letter on 21 April 2020

the proposed challenge concerned the claimant’s urgent need for safe accommodation during the coronavirus pandemic, on the basis that the accommodation being provided by the local authority was shared accommodation which was not safe, because of the claimant’s vulnerabilities arising out of his complex health history.

It was stated that the proposed challenge also concerned the authority’s refusal to deal with a review of the decision of 10 March, the authority’s failure to allow the claimant to join the Housing Register and the authority’s failure to produce a lawful housing-needs assessment.

However, as matters then progressed and has become clear in the course of the proceedings for relief by way of an interim order, the focus has been the claimant’s asserted extreme vulnerability to the pandemic and COVID-19, as a result of his past medical history.

In the letter, Ms Carrier refers to that medical history, the fact that he contracted pneumonia and sepsis, was homeless on discharge, he had a history of serious mental illness, including psychotic episodes, that he was struggling with his addictions to alcohol and drugs and he had experienced both a difficult childhood and adult life; his parents having both committed suicide and he having been in care from the age of 11.

(This judgment is solely on the interim relief application). The accommodation Mr E was in had shared bathroom and kitchen, so, the claimant said, it was impossible to shield or self isolate there.

In its response on 22 April, Chichester put forward four proposed accommodation options.

that Mr Escott remained in his current offer of temporary accommodation and that the Council put up signs requiring other placements to stick to the social distancing guidelines and detailing the consequences of failing to do so; secondly, a room at the Chichester Travel Lodge was offered, at £35 a night, which would have an en-suite bathroom but no cooking facilities on site; thirdly, an en-suite room at Westward House with a shared kitchen; that would be accommodation within the Council’s own temporary accommodation stock, the room would be two metres from the door to the outside and there are signs of an enforcement of social distancing, permitting only one person to use the kitchen at a time; and then, finally, a self-contained flat on the first floor of a conversion in Bayford Road, Littlehampton, that being a flat with a bathroom, fridge and microwave and shared use of a full kitchen with laundry facilities also. It was stated that the door to the flat had a lock and was approximately one metre from a single flight of stairs. Just like any accommodation, it was stated that it was likely to be suitable for a single young man. There was an element of shared space inside the property, but that was absolutely minimal.

All were rejected by Mr E and the judicial review application, and interim relief application, was issued on 24 April 2020. The witness statement in support by the claimant’s solicitor stated

“I was keen to ensure that this was accurate and I have spoken to his GP, Dr Yeld. I spoke to her today and she confirmed the claimant’s medical history means he is vulnerable to COVID-19 infection and should be shielded and so needs self-contained accommodation. I have asked for written confirmation from the GP and, once that is obtained, I will provide it to the court and the defendant.”

Unfortunately, the GP had not provided written confirmation by the time of the hearing.

Chichester then put forward another option on 24 April.

“Late yesterday afternoon, Mr Dixon, who is the Council’s housing officer, became aware of the possibility of a fully-self-contained flat at Westward House in Chichester becoming available. He has, himself, been to view the accommodation this morning and has personally helped to prepare this for new occupancy. He has received confirmation that, as at 12.15 today, the flat has been cleaned and it is now ready for immediate occupation. This is an unfurnished one-bedroomed flat with kitchen and bathroom with its own front door to the outside world with absolutely no shared facilities. This would enable him to self-isolate in the way that you have emphasised is necessary in his case. There is an extensive CCTV network at Westward House, onsite staff are available during 24 hours. There is within the flat an emergency response pull cord and the accommodation is within 400 metres walking distance of a large Tesco superstore.”

Mr E accepted that offer and moved in that day. A council officer, aware that there was no bed in the flat, brought a mattress from his own home.

However, Mr E’s solicitors then wrote on 27 April

“In our view, accommodation for a homeless person dependent on benefits who should be shielded during a pandemic and has ongoing mental health issues, such that the authority has been explicitly informed in writing by his GP of a suicide risk, is not sufficient to discharge your duty to accommodate, if it does not have the bare necessities and, in particular, a cooker and fridge and somewhere to sit and somewhere to sleep. It happens that the bare essentials are particularly important for this applicant. My client has a chronic back condition, he needs a proper bed. My client has a particular need for adequate nutrition. He needs cooking facilities and a fridge. However, any household needs cooking and storage facilities. When we have to remain inside during the pandemic, such facilities are even more important.”

The council responded

“(1) There was already a fitted wardrobe in the flat, so that item is not required by your client and should be disregarded. (2) A Council officer could personally loan a chair for use by Mr Escott and a table. This officer has also personally provided the mattress being used by your client. (3) Save as aforesaid and after careful consideration, the LHA is not in a position to provide by buying and, where required, also paying for the installation, the remaining items listed in your letter. It has no standing stock of the stated items. (4) Temporary accommodation being provided to Mr Escott at Westward House is, it is contended, suitable within the statutory meaning. He is being treated no differently than any other client so accommodated at Westward House over the years, for example, someone who is pregnant, and with the LHA, facing no less than anyone else, the critical demands of the current constraints and circumstances in providing for all of its customers, it has done the best it can for your client in this situation and at short notice. (5) The LHA will, of course, continue to assist Mr Escott in any way it can insofar as that is reasonably practicable. For example, it will endeavour to assist him in applying for charitable grants, etc., to acquire these items and/or to apply for a discretionary housing payment in respect of the outlay. There is also Chichester District Council’s rough sleeper outreach worker, Lisa Atoumb, who has been copied into this response with whom he can liaise and her contact details can be made available to him. (6) Your original letter of 21 April sought safe self-contained accommodation on Thursday last week. Fortunately, this became available on Friday morning at WWH. It was due to be offered to a family in bed-and-breakfast accommodation but your client was accorded precedence. This is precisely what he was offered and accepted. Yesterday you raised a new issue of content/facilities. Some of the items in your letter were last Friday and still would be, available both in the bed-and-breakfast accommodation, which he has vacated, it is, I am instructed, still in his name and/or the Travel Lodge. Those were the alternative options presented to him last Friday.”

This was the position that came on for hearing on the application for interim relief, save that the council had also provided two separate mattresses, a sofa, a microwave, a kettle and a fridge/freezer.

On suitability, both parties referred to Codona v. Mid-Bedfordshire District Council [2004] EWCA Civ 925, in which Auld LJ had stated:

“… I draw three main criteria for ‘suitability’ of an offer by a local housing authority of accommodation to homeless or vulnerable people like gypsies to whom it owes a statutory duty to secure the availability of accommodation: 1) suitability to a Wednesbury minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family, including the duration of their likely occupation of it; 2) the absolute nature of the duty which, though coupled with an elastic concept of suitability taking account of financial constraints and limited availability of accommodation, is not so elastic as to permit an offer below the Wednesbury minimum standard … and 3) special consideration, in the regulatory provision for and in decision-making in individual cases, for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view, so far as practicable and when considered with all the other circumstances, to facilitating their traditional way of life.”

The claimant relied particularly on the use of the words “the standard of condition of the accommodation having regard to the circumstances of the applicant”.

He says that the circumstances of this applicant, in the particular circumstances of the COVID-19 pandemic, are such as to combine to mean that he needs not just to be provided with accommodation where he can self-isolate and be shielded and, thus, not have to share facilities, such as kitchen and bathroom facilities, but also, to enable him to remain indoors, it needs to be accommodation which has basic provision of white goods, such as a refrigerator, a cooker and furniture, such as a bed.

The council argued that:

suitability remains a broad concept and, in the circumstances of this particular case, the local housing authority’s priority has been to provide accommodation as swiftly as possible in order to allow the claimant to be shielded so as to reduce his risk of infection. That has been accomplished and, thanks to what she describes as “the tireless work” of the defendant’s staff and the assistance of the community, he has, in fact, now been provided with the basic items he needs to be able to maintain shielding in the short term according to the Government guidelines.

And that the decision making power as to what was suitable was that of the council and should not be micro managed by the court, as a high bar for challenge was set.

The High Court held

In my judgment, it is, perhaps, instructive that, although this is an area of law in which there has been significant litigation over the years, there is not one authority that I have been able to find that sets out that, in order to comply with its duty to provide suitable accommodation, a local authority must provide furnished accommodation; a search on the usual search engines for furnished and unfurnished accommodation yielded no results.

In those circumstances, and in any event, I take the view that it cannot seriously be argued that a local authority, when providing accommodation, must always provide basic furniture and local authorities, to my knowledge, frequently comply with their statutory obligations by providing unfurnished flats of the kind which has been provided here. In those circumstances, insofar as Mr Johnson submitted at one stage that the argument on behalf of the claimant applied outwith the circumstances of COVID-19 and the claimant’s particular vulnerability, I reject such a submission. In my view, local authorities may well often, and do, fulfil their statutory duty by providing unfurnished accommodation.

However, the stronger argument on behalf of the claimant is not a general one, but a specific one relating to his particular circumstances, namely, that, because of his particular vulnerability, he needs not to just self-isolate but to shield from the risk of infection and, by doing that, he needs to be in accommodation which is not only appropriate for him to avoid contact with others, but also has sufficient facilities to enable him to remain in the accommodation for 24 hours a day and not expose himself to the outside world and the risk of infection.

Whilst, on the one hand, I can see that the individual needs of a particular person may be enhanced by the COVID-19 pandemic and the consequences of it in relation to the need to self-isolate and to shield, it must also be the case that the heightened requirements, as illustrated by the need to get homeless people off the street and into emergency accommodation, is balanced by the difficulties faced by local authorities in meeting the demands which arise where accommodation is scarce, where the needs of the public are heightened and enhanced and where the local authority’s own staff are struggling to cope with the demands made on them, where they also have to work from home and do the best they can to assist people in the community, risking their own health in so doing.

In my judgment, Ms Thomas (for the council) is right in her submission that this claim is premature and that this application is misconceived.

And further:

I do not consider that the local authority have in any way acted unlawfully in failing to provide a fridge or a cooker or a bed. Their primary duty is in relation to the provision of accommodation and they can only offer accommodation which is available to them. There are different types of accommodation, which they have been able to obtain, to offer to customers: hostel accommodation, bed-and-breakfast accommodation, hotel accommodation or self-contained flats, which are unfurnished. They have to juggle the demands made on them with what they have available and it is reasonable, in my judgment, for the local authority to satisfy those demands by acting in the way that they have and giving the options that they have done to this particular claimant.

I consider it to be significant that the claimant accepted the offer at Westward House, although he was told when the offer was made that it was unfurnished. I do not consider that the local authority has a legal obligation to provide the items which are the subject matter of this application: that is the fridge, the bed and the cooker.

I was surprised, and I reject, the suggestion that a microwave oven is not capable of cooking food only heating it, as it seems to me to be wholly self-evident that a microwave is capable of cooking food and a microwave oven is an appropriately-useful piece of equipment for basic food preparation. The claimant has been provided with that and it is unarguable, in my view, that the local authority acted unlawfully in failing to provide a cooker as opposed to a microwave oven.
There is an issue over whether the local authority has or has not provided a fridge. It appears that a fridge was offered but the claimant appears to have rejected it on the basis that he would need to clean it himself and might, thereby, expose himself to the risk of infection if COVID-19 viruses should be present in the fridge. In my judgment, this was a wholly unreasonable attitude for the claimant to take and could be described as precious, or worse than that. The fact is that the local authority has been bending over backwards to assist him and his rejection of the assistance has been, in my judgment, wholly unreasonable in that regard.

Comment

I confess to struggling with this one. At a time when literally thousands of homeless households were having to isolate in single rooms or studio flats in hostels or blocks, and when the street homeless were being provided with accommodation in hotel rooms – with food runs by volunteers and charities – to enable them to self isolate, the context was… not good.

Where any provision of white goods, by a charity or other party or by the council, would have involved breaching Mr E’s terms of self isolation in delivery and installation, it is also hard to see why provision by the local authority was somehow necessary/vital or why any intervening period before white goods could be provided could not have been addressed by food deliveries as were taking place for many high vulnerability self-isolating people, including those newly placed in hotel rooms.

While I would not at all rule out there being circumstances in which suitability of accommodation might rely upon provision of adequate facilities (and we have seen cases on s.188 accommodation with not enough beds for the family, or unsuitable short term accommodation, or where adaptations for access were required but had not been promised at the time of the decision), a medical need for – for instance – a fridge for medication might be a Care Act issue, rather than an issue of accommodation under Part VII.

And I’m afraid that if it is true that provision of a fridge was refused because Mr E would have to clean it himself then the application rightly failed.