Jaberi, R (On the Application Of) v City of Westminster (Re Housing Act 1996) (2023) EWHC 1045 (Admin)

A judicial review on three grounds:

i) Breach of section 193(2) Housing Act 1996 duty to secure suitable accommodation;

ii) The Westminster’s allocation policy was unlawful in that it denied the applicant medical need priority reasonable preference, restricting him to homeless reasonable preference; and

iii) Breach of the duty under section 166A(9)(a)(ii) Housing Act 1996 to provide the applicant sufficient information to permit the applicant to determine whether housing accommodation appropriate to his needs is likely to be available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him

Brief background

The claimant is married with two children aged seven and three. He is a refugee from Iran. The claimant is disabled. He suffers from epilepsy. Although he takes medication for it, his epilepsy is not controlled. He has major tonic clonic seizures during which he loses consciousness two to three times a week, as well as minor seizures about three to six times a night. A side effect of the seizures is chronic muscular pain. The claimant also suffers from severe depression and anxiety. Due to his epilepsy he suffers from mobility difficulties. He requires a walking frame and stick, and he has great difficulty using stairs. His disabilities necessitate support with everyday activities, including cooking, personal care, dressing and mobilising. His wife, Nasim Salehi Shahroodi, is his principal carer.

He had applied to Westminster as homeless in 2018 on the ending of a private tenancy, and Westminster had accepted a full duty. The household were placed in a two bedroom flat with an internal staircase on the 16th floor of a block of flats. Mr J was placed on the housing register with the ‘homeless’ reasonable reference.

In October 2018, Westminster accepted that Mr J had a need for a property without internal stairs, as he was confined to the upper floor, and then in 2021, accepted that there was a need for a three bedroom property. However, Mr J and household were not moved from the two bed/two floor flat.

Following a protocol letter of claim in 2022, and a couple of offers of accommodation withdrawn as acknowledged as not suitable, a flat on the 18th floor of another block was offered. The block had two lifts, the flat had three bedrooms and was level. But it required adaptations. THe offer was accepted, subject to adaptations being completed, and a further review of suitability requested. By the time of the hearing, the adaptations had not been completed and the family remained in the previous flat, but completion was expected shortly.

On breach of s.193(2) duty, Mr J argued that Westminster having accepted his need for a level property in 2018, and then a three bedroom property in 2021 meant that it was accepted that the temporary accommodation was accepted to be unsuitable in the long term by Westminster, so there was a s.193 breach.

Westminster argued that Mr J should have sought a suitability s.202 review of the flat, and that the acceptance of the subsequent offer meant the claim was academic.

The High Court accepted that the breach was not ongoing, but

I reject the defendant’s contention that I should not consider whether there has been a breach of s.193(2). First, at the date of the hearing the Braithwaite Tower flat was still not available. Secondly, the claimant is still living in the Falkirk House flat and, if the result of the ongoing review of the Braithwaite Tower flat (or any subsequent appeal) were to be a decision that that property is unsuitable, it would be important to know whether the continuing provision of temporary accommodation for the claimant in the Falkirk House flat puts the defendant in breach of s.193(2).

Although I accept that the claimant could have sought a suitability review in respect of the Falkirk House flat, and potentially obtained a decision as to whether the defendant considered that property suitable temporary accommodation (whether in the short, medium or long-term), I agree with the claimant that the defendant has raised this point too late to be permitted to pursue it.

The only decisions the defendant appears to have taken regarding the suitability of the Falkirk House flat were the initial decision in October 2018 that, at that stage, it was considered suitable; and the decision that it was not suitable (at least for the long term) which was made when the claimant was put on the transfer list, in or about April 2021. No decision regarding its suitability appears to have been taken following the decision in October 2018 that the claimant requires a mobility category 3 property, although the Falkirk House flat is not a mobility category 3 property. In these circumstances, I agree with the defendant that it can only be shown to have breached the main housing duty if it would have been irrational for the defendant to conclude that the Falkirk House flat was suitable, even in the short term.

In my judgment, the claimant has shown that a conclusion that the Falkirk House flat was suitable for the claimant, even only in the short-term while alternative suitable temporary accommodation was identified, would have been irrational at least by the time the claim was issued on 9 June 2022. By then, the claimant had been in a property with internal stairs for 3 years 8 months, despite the defendant’s recognition throughout that time that he needed a property with level access internally. This has had the serious consequence of effectively confining the claimant to the top floor, as it is very difficult for him to access the kitchen and living area. In addition, by the time the claim was issued, the claimant had been in a two bedroom property for a period of 14 months since the defendant had accepted that, for health reasons, the family required a three bedroom property. The main consequence has been that Ms Salehi Shahroodi, who is the primary carer for their two children, as well as a carer for the claimant and for her disabled brother, and a part-time dental assistant, has been sleeping on the floor of her children’s bedroom and is exhausted due to inadequate sleep over a very extended period. At the time of the hearing, the breach remained ongoing as no alternative suitable accommodation was available for the claimant.

But no mandatory order was made in view of the accommodation being prepared for Mr J.

On the medical priority issue.

Mr J had 150 priority points on Westminster’s housing register for the homelessness reasonable preference, and a further 50 points from 2021 due to Mrs J’s employment. Medical priority, under Westminster’s scheme would confer 200 points. Mr J argued that it was irrational that clause 6.1.2 of the scheme excluded homeless applicants from medical priority, and so a breach of s.166A(3) Housing Act 1996 requirements to give a reasonable preference.

6.1.2. Accepted homeless households living in temporary accommodation will not be eligible for this priority. It is the Council’s statutory duty to ensure that suitable temporary accommodation is provided.

The High Court was not convinced.

An allocation scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.166A(3), over those who do not: Ahmad, Lord Neuberger, (39). As the House of Lords made clear in Ahmad, s.166A(3) only requires that the people encompassed within that section are given “reasonable preference”; it “does not require that they should be given absolute priority over everyone else” ([18]). As the claimant acknowledges, there is no requirement for local authorities to frame their scheme to afford greater priority to applicants who fall within more than one reasonable preference category over those who have reasonable preference on a single basis.

Section 6.1.2 of the Allocation Scheme does not deny any person who falls within one of the classes identified in s.166A(3) a “reasonable preference” over those who are not within that section. Those, like the claimant, who fall within s.166A(3)(b) by reason of being owed the main housing duty are given a reasonable preference by being placed in the homeless priority group and given 150 priority points. Those who fall within s.166A(3)(d) by reason of having a need to move on medical or welfare grounds, and who are not owed any of the Part VII duties specified in s.166A(3)(b), are given a reasonable preference by being placed in the medical priority group and given 200 priority points. This approach does not result in any breach of statutory duty.

At first glance, it may appear incongruous that a person who has a medical need to move will be given fewer priority points if they have the additional misfortune of being homeless and in temporary accommodation. However, on analysis, the approach taken by the defendant is clearly a rational one. It is proper for the defendant to proceed on the basis that if it owes an applicant a duty to secure suitable temporary accommodation, it will comply with that duty. If an applicant in temporary accommodation is identified as needing to move on medical grounds, the defendant will put them on the transfer list with a view to identifying alternative suitable accommodation. It is true that the flexibility of the term “suitable” is such that the temporary accommodation from which an applicant needs to move for medical reasons may remain suitable in the short or possibly medium term. Nonetheless, the applicant’s need to move will be identified and I accept that, given the well known shortage of social housing, they are likely to be provided with suitable temporary accommodation considerably earlier than suitable Part VI accommodation would be made available to them.

This ground failed.

On the third ground, the provision of information under section 166A(9)(a)(ii), the claimant through his solicitors and counsel appeared to have requested different information at different times, but the claim for breach of the s.166A duty was misconceived. Westminster’s allocation policy clearly contained a right for the applicant to request such information, and that was the statutory obligation under s.166A.

If considered as a failure to comply with its own policy (which was not the pleaded case), this would also fail. Westminster had provided what information it could and could not be faulted for not making predictions where it lacked sufficient knowledge of how many properties of the required description would become available.

This ground also failed.

Comment

The s.193 duty point is interesting in that it shows that a local authority can acknowledge the unsuitability of temporary accommodation in decisions made (as here) with regard to Part VI allocation issues and entitlements, rather than requiring the mechanism of suitability reviews under Part VII. By accepting that Mr J had a medical need for a level property (and the impact on him and his family of the current accommodation) and a need for a three bedroom property, it ought to have been clear to Westminster that the property Mr J’s household continued to occupy, for over 3 years, could not continue to be suitable. So a breach of s.193 duty arose.