Tiemo, R (on the application of) v Lambeth London Borough Council (2020) EWHC 1193 (Admin)

A interim judicial review decision from May, but judgment just out. The issue was the suitability of temporary accommodation under section 188 Housing Act 1996 (judicial review necessary, as no s.202 review option on s.188 accommodation).

Ms Tiemo had applied to Lambeth as homeless on 9 April 2020, after the person at whose home she was sofa surfing had told her she had to leave – likely due to conditions during lockdown. Lambeth initially found them a hotel room, and then on 14 April a flat. It appears that on 10 April, Ms T’s solicitors had made an application for interim relief and issued the present judicial review claim, seeking an order that Ms T be provided with suitable accommodation pending assessment of her homelessness application. This apparently resulted in an order on 16 April that Lambeth must provide suitable interim accommodation within 7 days, apparently without being aware of the accommodation provided on 14 April.

However, Ms T’s solicitors pursued the application, on the basis that the flat was not suitable. There were some issues about hot water in a room, and provision of a kettle, but these had been resolved, leaving the main issue on suitability as being affordability.

Ms T’s case was that on assessing her income and expenses, “there is a shortfall of at least £281.44 per week between the claimant’s guaranteed income and her weekly living expenses, of which the rent forms a large part.”. The Homeless Code of Guidance at 17.45, art.2 of the Homelessness Suitability of Accommodation Order 1996 and the decision of the Supreme Court in Samuels v Birmingham City Council (2019) UKSC 28 (our note), considered together, meant that

“in considering whether a property is suitable, affordability is one of the issues in question and that a housing authority must take into account whether accommodation is affordable, including taking account of the financial resources available to the person in question, that is all forms of income, and then the costs of the accommodation, including but not limited to, payments by way of rent, council tax and other various payments which might be required.”

Lambeth disputed that the property was not suitable, drawing attention to communications to Ms T’s solicitors stating

“It is worth pointing out that your client’s s.188 accommodation is, by nature, temporary. The accommodation is booked by the council on a nightly basis. Your client is not responsible for bills and council tax and the council would only enforce rent collection when her benefits application comes through. The council does not penalise occupants, especially in the current situation of the COVID-19 pandemic, for non-payment of rent when they are not able to pay it, but the council would, of course, expect housing benefit payments to be backdated if your client’s benefits application is successful. The rent for this type of accommodation is also of a standard level and is affordable for people on benefits.”

And

“We have also made it clear to you that action will not be taken for non-payment of rent whilst your client’s benefits claim is pending, particularly in the current circumstances.”

As such, Lambeth argued, any question of suitability through affordability was entirely hypothetical and the application premature.

In response, Ms T argued

that this is simply not good enough for a person in this claimant’s position. In particular, it is not acceptable, he submits, that she should run the risk of running up arrears of rent which are then not covered by housing benefit when eventually it is made – if it is made – and thereby put herself and her son in jeopardy as a result of such arrears of being evicted and, indeed, being deemed to be intentionally homeless. He submits that the obligation of the council is to provide accommodation which is affordable by reference to the claimant’s present means, not hypothetical means, upon the basis of potential housing benefit. He argues that the rules in relation to affordability and, therefore, suitability, are the same whether one is talking about emergency housing being provided under s.188 of the Housing Act or, indeed, the local authority’s more long-term legal obligations when it comes to providing accommodation for those who qualify for it under the usual schemes and under the legislation.

The position on Ms T’s housing benefit claim at the time of the hearing was not entirely clear. No benefit decision had been made, and it appeared a claim had not yet been made. The court was not impressed.

Also, as I have indicated in the course of the hearing, I am surprised that, despite having the assistance of solicitors since 9 April, if indeed it is the case that the obtaining of a national insurance number is the key to the making of an application for housing benefit and therefore the securing of funds to pay for the occupancy of the property in question, the solicitors have made no effort, so far as I am aware, to assist in the obtaining of such a national insurance number: the fact that they do not appear to have done so somewhat supports the position which appears from the assessment of the Child and Family Assessment Unit that the lack of a national insurance number is not, in fact, the significant problem and that the claimant could and should have already made her application for housing benefit. The fact is that, at the moment, the position is somewhat obscure.

However, it was held that the application was premature

It seems to me that Mr McDermott is right that this application is premature. It may be that the claimant will be able to make an application for housing benefit which will have the effect of covering all rental payments from 14 April and her ongoing liability to pay rent until the council’s assessment is complete and that the fears of the claimant will thereby dissipate completely. This is certainly the expectation of the defendant and of Mr McDermott in his submissions. However, I understand the concerns of the claimant and the predicament in which she might find herself by being liable to pay even the notional rent which is presently being charged but not being enforced. The real difficulty in the present case seems to me to be that no application for housing benefit has yet been made because the claimant has not obtained a national insurance number and there seems to be a considerable amount of confusion about the entitlement to a national insurance number, whether emergency or otherwise, the relationship between that and her application for housing benefit and what the problem is to hold up her application for housing benefit.

The application was adjourned for a period to enable the position after a housing benefit claim to be established.