Abdikadir v London Borough of Ealing (2022) EWCA Civ 979

Where an offer of out of borough accommodation had been made and refused, and a discharge of duty upheld on review, did the council’s failure to notify the other council under section 208(2) Housing Act 1996 mean that the review was invalidated?

The Court of Appeal said no. The notification duty under s.208(2) did arise when an offer of suitable accommodation in the the other borough was made, contrary to Ealing’s arguments, but the offer was refused by Ms A. That refusal and the decision to discharge duty both fell within the 14 day window for the s.208(2) to be made. There was therefore no breach of the duty.

However, Ealing had not complied with its own policy on out of borough placements in that it had apparently not carried out a check for potential private sector accommodation that could be offered in-borough before making the out of borough offer. Appeal allowed on that ground.

Princess Bell (R OAO) v London Borough of Lambeth (2022) EWHC 2008 (Admin)

This is the first decision on an application for a mandatory order for provision of suitable accommodation after R (Elkundi) v Birmingham and R (Imam) v Croydon (2022) EWCA Civ 601 (our note).

Lambeth had accepted a homeless duty to the applicant in December 2020. She and her three children were placed in interim accommodation at 388 Lower Addiscombe Road, a private sector property.

Two of the applicant’s children have severe disabilities:

The Claimant’s older son and her daughter have significant and profound disabilities. Both have neurological conditions, global developmental delay, learning disabilities, four limb motor disorder, epilepsy, variable heart block, the heart condition long QT syndrome and low muscle tone. They are both registered blind, use non-verbal communication, are incontinent, fed by tube and use wheelchairs. Each of them has respiratory vulnerabilities and sleep disturbance patterns.

The ‘interim’ property only had one bedroom on the ground floor. In addition, the property is “damp, (…) mouldy and infested with mice. The heating is not working effectively. The property is on a road where there is a continuous flow of traffic exposing the family to significant traffic fumes if they open the windows.”

Lambeth had accepted that the property was not suitable in December 2020. However, the applicant was left in the property, with no offers of suitable property being made (though a number of unsuitable properties were offered). Medical evidence was that remaining in the property was impacting the children’s health significantly and delaying necessary operations, as well as impacting their care and development support, giving rise to significant harm. And, as of June 2022, there was a possession claim by the landlord of the property.

The applicant sought a mandatory order that suitable accommodation be provided within a set time.

Lambeth argued that it had taken all reasonable steps to secure suitable accommodation.

In judging the reasonableness in Lambeth’s actions it was necessary to look at the “depressing reality” that the Claimant was not alone in having an urgent need for rehousing. Mr Conyers’ case studies provided details of four other cases on the housing register with similarly pressing needs. Resources were not entirely irrelevant and could be considered: Lewis LJ had accepted in Elkundi at (137) that the limited number of suitable properties available may be relevant to assessing whether a local authority has done all it reasonably can. Because the limited number of suitable properties available is very likely due to financial constraints, Lambeth submitted that it was clear Lewis LJ was not intending to exclude resources entirely from the court’s consideration.

The Court applied Elkundi in examining whether a mandatory order was justified.

i) The current property was clearly highly unsuitable

ii) The property was having very damaging impacts on the applicant and two of her children, for their health, delay in necessary surgery, care support and education and development.

iii) The period of time – this was now 20 months

iv) the likelihood of accommodation becoming available in the near future. Lambeth could say nothing certain here, so there was no evidence of imminent suitable accommodation. However, Lambeth’s comment that suitable accommodation would be found if and when there was a possession order on the current property did undermine Lambeth’s statement that it had already taken all reasonable steps, and the Court was satisfied “that it would be capable of complying with a mandatory order within a reasonable time if one was made.”

In my view there is force in the Claimant’s argument that the combined effect of the PSED and section 11 of the Children Act 1989 is that local authorities need to be proactive in ensuring that they have available to them housing that will meet the needs of families with disabled children under Part VII. I do not accept that all of the criticisms of Lambeth’s policies made by the Claimant are merited or that a declaration that Lambeth has breached the duties in question would be appropriate. However, given the very significant needs of the disabled children in his case, Lambeth’s duties under the PSED and section 11 do underscore the need for a mandatory order.

A mandatory order was made requiring Lambeth to secure and offer suitable accommodation within 12 weeks.