ZRR, R (On the Application Of) v London Borough of Bexley (2024) EWHC 2073 (Admin)

This was a judicial review of Bexley’s contention that temporary accommodation offered to ZRR under s.190 Housing Act 1996 was suitable and its duty was discharged when ZRR refused that accommodation.

This is not something that comes up often in case law, as the duty to provide suitable temporary accommodation to those found to be intentionally homeless under section 190 is most often a short lived matter, for a matter of a couple of weeks (although potentially longer, as we’ll come back to).

We’ll pass over the inevitably somewhat complex history to the matter. Suffice it to say that ZRR, and her household of her partner and two daughters had applied to Bexley as homeless. It is worth noting that

The claimant’s oldest daughter suffers from mental health problems, originating from trauma arising from sexual abuse. Her youngest daughter has diagnoses of physical illness (postural sclerosis), and mental health illness (sensory processing disorder); she was, at the material times, in receipt of an Education and Health Care Plan (“EHCP”). The Claimant’s partner suffers from anxiety, depression, suicidal ideation, and bi-polar disorder.

This application was after an eviction for rent arrears. Bexley accepted that ZRR was homeless, eligible and in priority need, and that the relief duty was engaged. ZRR was offered temporary accommodation in a B&B in Erith for up to 56 days – in two rooms but sharing bathrooms. ZRR did not take this up and stayed with family.

ZRR asserted to Bexley that the Erith B&B was unsuitable

She stated that both the manager of the Erith B&B and her children’s Child and Adolescent Mental Health Services (“CAMHS”) nurse agreed with this assessment. The accommodation was said to be unsuitable because: (i) the claimant’s daughters were expected to share a room with the claimant and her partner, with the areas separated by only an open arch. The claimant’s eldest daughter suffered sexual abuse at the hands of her biological father, (ii) the communal areas in the accommodation would be shared with other families. Her youngest daughter has sensory processing disorder, severe social anxiety and will not speak to people she does not know, (iii) delay in the correct support would lead to a deterioration of the claimant’s youngest daughter’s mental health (supported by a letter from a Specialist CAMHS nurse), (iv) the claimant’s partner suffers from severe depression and anxiety and, after viewing the accommodation, he became “very withdrawn and anxious” and, (v) the accommodation does not allow dogs and the family have a support dog for the children’s “social and mental health issues”.

Bexley went on to find ZRR was intentionally homeless due to rent arrears. Two rooms at the Erith B&B were offered as section 190 accommodation for 14 days. The letter stated that “there is not a right of review regarding the suitability of accommodation being provided under this legislation.” ZRR again refused the accommodation as unsuitable.

Bexley maintained that this ended the s.190 duty. ZRR brought judicial review proceedings.

Shortly after this Bexley a) completed a Personal Housing Plan for ZRR which noted her “current entitlement is for a 3-bedroom property at the LHA rate if she were making an application for housing assistance.” and gave a list of agents to contact for private sector tenancies; and b) carried out an assessment under section 17 Children Act 1989, the findings of which (no additional needs over housing) ZRR also challenged and included in the present claim.

The challenge was:

i) Bexley had not secured suitable accommodation in breach of s.190 duty
ii) Bexley was required to provide ZRR with a valid notice discharging its duty under s.190 and had not done so.
iii) Bexley had failed to have regard to ZRR’s circumstances when determining what period of time would provide her with a reasonable opportunity to secure accommodation for occupation.
iv) the section 17 assessment of ZRR’s children was unlawful

On i) – suitability, the court had attention to the Homelessness Code of Guidance for Local Authorities, in particular, paras 17.31 to 17.42

“17.31 Bed and breakfast (B&B) accommodation caters for very short-term stays only and affords residents only limited privacy, and may lack or require sharing of important amenities, such as cooking and laundry facilities. Wherever possible, housing authorities should avoid using B&B accommodation as accommodation for homeless applicants, unless, in the very limited circumstances where it is likely to be the case, it is the most appropriate option for the applicant.
17.32 Living in B&B accommodation can be particularly detrimental to the health and development of children. Under section 210(2), the Secretary of State has made the Homelessness (Suitability of Accommodation) (England) Order 2003 (SI 2003 No. 3326) (‘the 2003 Order’). The 2003 Order specifies that B&B accommodation is not to be regarded as suitable for applicants with family commitments provided with accommodation under Part 7.
17.33 Housing authorities should, therefore, use B&B accommodation to discharge a duty to secure accommodation for applicants with family commitments only as a last resort and then only for a maximum of six weeks. Applicants with family commitments means an applicant:
a. who is pregnant.
b. with whom a pregnant woman resides or might reasonably be expected to reside; or,
c. with whom dependent children reside or might reasonably be expected to reside.
17.34 For the purpose of the 2003 Order (as amended by the Homelessness (Suitability of Accommodation) (Amendment) (England) Order 2023 (the 2023 Order), B&B accommodation means accommodation (whether or not breakfast is included):
a. which is not separate and self-contained premises; and,
b. in which cooking facilities are not provided, or any of the following amenities is shared by more than one household:
i. a toilet.
ii. personal washing facilities; or,
iii. cooking facilities.
17.35 B&B accommodation does not include accommodation which is owned or managed by a housing authority, a private registered provider or a voluntary organisation as defined in section 180(3) of the 1996 Act, or accommodation that is provided in a private home, such as lodging or as part of a sponsorship arrangement.
17.36 The 2003 Order provides that if no alternative accommodation is available for the applicant the housing authority may accommodate the family in B&B for a period, or periods, not exceeding six weeks in result of a single homelessness application. Where B&B accommodation is secured for an applicant with family commitments, the Secretary of State considers that the authority should notify the applicant of the effect of the 2003 Order, and, in particular, that the authority will be unable to continue to secure B&B accommodation for such applicants any longer than 6 weeks, after which the authority must secure alternative, suitable accommodation.”

The Code also identifies (at 17.41) that B&B accommodation is not suitable for 16- and 17-year-old applicants, even on an emergency basis.

Paragraph 17.42 of the Code reads:
“The Secretary of State considers that the limited circumstances in which B&B accommodation may provide suitable accommodation include those where:
a. emergency accommodation is required at very short notice (for example to discharge an interim duty to accommodate); or
b. there is simply no better alternative accommodation available, and the use of B&B accommodation is necessary as a last resort.”

In addition the court considered the Homelessness (Suitability of Accommodation) (England) Order 2003 (as amended):

By article 2 of the 2003 Order, an applicant with family commitments is defined as, inter alia, an applicant with whom dependent children reside. The claimant falls within this definition.
B&B accommodation is defined as accommodation which is not separate and self-contained premises and in which the toilet, personal washing facilities or cooking facilities are shared by more than one household.
The exception in article 4(1), where “no other accommodation other than B&B accommodation is available”, is limited to a period of six weeks.

The court was apparently slightly surprised not to have it argued that the B&B was unsuitable simply by operation of the 2003 Order as it appeared that ZRR’s household and the accommodation fell under it. There was no evidence from Bexley as to the lack of any other accommodation. But as this was not argued, the Court moved on to considering the accommodation with regard to the Code of Guidance.

Given the context within which such a decision was made i.e. that set out at 17.31 – 17.45 of the Code, and the specific circumstances of the claimant and her family, I conclude that no reasonable local housing authority could have found that room G5 of the Erith B&B was suitable to accommodate the claimant and her family, even for the limited 14 day duration proposed.

In reaching this conclusion, I find the ages and mental health of the children to be highly relevant, with the mental health of the youngest child to be of particular significance. This was referred to, amongst other places, in the section 17 Child and Family Assessment Report authored in April 2023 and the letter from the claimant to the defendant of 27 February 2023. It was also the subject of a letter from the CAMHS specialist nurse, which further relays that the highly likely consequences for the youngest child of moving into shared accommodation is highly likely to result in a “deterioration in her mental health”. I further observe that there is no evidence before me from the defendant seeking to justify how, taking account of the aforementioned matters, room G5 at the Erith B&B was found to be suitable accommodation.

For these reasons, I find that securing room G5 at the Erith B&B for the claimant and her family on 12 May 2023 for 14 days, did not discharge the defendant’s duty to the claimant under section 190(2)(a) of the 1996 Act.

On ii) there was no statutory requirement for a notice discharging the s.190 duty to be given to the applicant. There was no decision to discharge that required a notice. The duty was time limited by the original decision as to s.190 provision.

On iii) there was no real basis advanced as to what the ‘reasonable time’ to secure accommodation should reasonably have been and why. Bexley were well aware of ZRR’s and the household’s circumstances.

On iv) – the s.17 Children Act assessment.

It was not the case that the assessment had not considered the children to be children in need.

On my reading of the Assessment, it cannot be said that it fails to identify the children as being ‘children in need.’ Indeed, it seems to me to be axiomatic that there was such an acceptance by the assessing social worker, given that the outcome of the Assessment was a recommendation that the family move to temporary 3-bedroom accommodation in Manchester for 28 days. This offer was made to meet the concern regarding the “family’s housing issues”. It is common ground that accommodation can be provided under section 17 of the 1989 Act. It has not been suggested that the provision of this accommodation in Manchester was made pursuant to any duty under Part VII of the 2006 Act, or indeed any other power or duty other than the general duty to children in need under section 17 of the 1989 Act.

On education, this was a relevant concern for the assessment, and it was partly addressed.

In my conclusion, and contrary to the claimant’s contention 3, the Assessment does clearly identify the relevant circumstances of the youngest child’s education and the concerns arising therefrom, and the author of the report specifically refers, on multiple occasions, to the fact that the youngest child “… is home schooled. A tutor comes in once a week for an hour. Mother reports that [the youngest child] relates to the tutor well…”. Under the headings “What is working well?” and “Existing Strengths” the report also notes that the youngest child “is due to have 1 hr per day but due to her grandparent’s kitchen (where the tutoring takes place) this is not happening”. There is further reference to the report’s author engaging with the Deputy Headteacher at the school that the youngest child previously attended.

In addition to the above, the report further indicates that the youngest child had been referred by her school for an education plan “from 20 June 2023” and that the claimant was awaiting that report.

Given the matters set out above, in particular that an education plan was awaited at that time, and further observing the absence of any evidence that the educational position of the youngest child was causing her detriment, I conclude that it was open to the author of the report to find that there were no concerns as to whether the education needs of the youngest child were being met.

But the education of the youngest child was not addressed in the context of the proposed offer of accommodation in Manchester and whether her education needs could be met there. The assessment was silent on this.

The education needs of the youngest child were undoubtedly a matter that required consideration when assessing whether to offer the family short term accommodation in Manchester as the solution to meeting the identified needs of the children. Whilst the Assessment should not be subject to an over-zealous textual analysis, and appropriate respect must be given to the judgements of the social worker undertaking the assessment, the decisions arising therefrom relate to vulnerable children and must be scrutinised with care. Having done so, I conclude that the analysis of whether to offer accommodation in Manchester for 28 days as a response to ‘concerns’ regarding the children, is flawed for failure to take lawful account of the youngest child’s education needs.

For this reason, the assessment was unlawful.

Overall, Bexley had not met its duty to porvide suitable accommodation under s.190 HA 1996, and the section 17 Chilren Act assessment was unlawful.

A mandatory order was made that Bexley comply with its s.190 duty within 14 days, and carry out a fresh s.17 assessment.