HOUSING LAW
PRACTITIONERS’
ASSOCIATION
HOMELESSNESS
AND
ALLOCATION
Legislative and case-law update
1November 2006 –9 November 2007
Liz Davies
Garden Court Chambers
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HOMELESSNESS
PART 7 HOUSING ACT 1996
All statutory references are to Housing Act 1996 (“HA 1996”) unless otherwise stated.
Applications s.183
1. R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Ct
The claimants were all secure tenants of Birmingham City Council living in
profoundly overcrowded and unsatisfactory accommodation. They applied to
Birmingham as “homeless”. Birmingham had a general policy in respect of persons
who alleged that they were homeless requiring applicants to go through a “home
options” interview with the making of inquiries or provision of interim
accommodation being ignored or at best deferred to an indefinite date. Those existing
tenants who alleged that they were homeless at home would be referred to local
housing officers for a transfer application to be completed. The Home Options
scheme was supposed to prevent homeless by seeking to ensure that either existing
accommodation continued to be available or that alternative accommodation was
located.
After some persistence and legal threats, the council accepted that it owed them the
main duty (HA 1996 s193) because although the claimants had accommodation it was
not reasonable for them to continue to occupy (HA 1996 s175 and s177). The council
told them to remain in their present homes until made an offer under the council’s
allocation scheme. The council’s case was that, although the existing secure tenancies
were not reasonable for the applicants to continue to occupy (s.175(3)), they were
“suitable” for the purposes of performing the obligation to secure suitable
accommodation (s.193(2), ss 206 and 210).
Collins J held:
 The home options scheme could not be lawfully used to defer consideration of
a homeless application. Any steps taken to avoid homelessness had to be taken
in parallel to the carrying out of duties under Part 7;
 There was no power to defer the inquiries that had to be carried out under
s.184(1);
 The threshold for the duty to make those inquiries is a low one and in the vast
majority of cases the making of the application of itself would mean that it
was difficult if not impossible for the council not to believe that the applicant
might be homeless or threatened with homelessness;
 There is no particular form of application. It need not be in writing. If it is
apparent from what is being said that a person might be homeless or
threatened with homelessness, the s.184 duty is triggered. A transfer
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application because of unsuitability of living conditions might be sufficient to
trigger the s.184 duty;
 There is an interim duty to accommodate in cases where a person might be
homeless and in priority need;
 It is not permissible for a housing authority to advise a person threatened with
homeless to wait until a court order was made or eviction occurred before it
took any steps (duty to those threatened with homelessness at s.195);
 The accommodation of the homeless at home could never be regarded as
suitable, even for a short time;
 It is a breach of the council’s duty to require the homeless at home to carry on
living there but there can be agreement between the parties to do so;
 Generally once a duty is accepted, it should not take longer than 6 weeks for
suitable accommodation to be provided and any longer period would need
clear justification.
Birmingham’s appeal against the last 3 bullet points was heard by the Court of Appeal
on 8 and 9 October 2007. Judgement reserved.
Inquiries and decisions s.184
2. R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Court
“there is no power to defer the inquiry which has to be carried out under s.184(1)”.
Medical inquiries
3. Khelassi v Brent LBC
[2006] EWCA Civ 1825
[2007] Legal Action February 31, CA
One psychiatrist said about the applicant: “this gentleman describes frequent suicidal
thoughts and in my view there is a real and substantial risk of him killing himself… it
is my view that his psychological difficulties would distinctly hinder him in any
attempt to seek out accommodation including his lack of concentration, lack of self
confidence and lack of motivation. It is my view that were this gentleman to be
homeless then there would be a substantial risk of his psychological state worsening
even further”. Nowmedical advised the local authority “his condition is not
substantial nor such as to impede reasonable function and activity…”. A second
psychiatrist prepared a report “he came across as extremely depressed and hopeless.
He entertained suicidal thoughts and recently stated hearing voices threatening in
nature. Mr Khelassi has entered suicidal ideas and has actually had one suicide
attempt last month… I would be extremely concerned bout further deterioration of his
mental state, which may culminate in a crisis admission and perhaps even successful
suicide attempt.” Nowmedical advised a second time, after its doctor had personally
examined Mr Khelassi, and said “I found him to be depressed to a moderate extent… I
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found no definite psychotic systems and while he has thoughts of self-harm there is no
actual suicidal intend. …Overall I do not consider his depression of a type or severity
such as to significantly impede his reasonable function, nor do I see material risk to
his health from homelessness”. The first-instance Judge held:
(1)
there was a sharp difference of opinion between
Nowmedical and the applicant’s psychiatrist;
(2)
the decision letter had not grappled with this difference;
(3)
where there is a risk of suicide, a great deal was at
stake. Given the body of psychiatric evidence it was
necessary to obtain an opinion more authoritative than
Dr Keen, especially bearing in mind the disagreement
on the key issue of vulnerability which already existed
between him and the psychiatrist.
The Court of Appeal refused Brent permission to appeal and also stated that if
permission had been given they would have found that the judge was “plainly right”.
4. Shala v Birmingham City Council
[2007] EWCA Civ 624
[2007] August Legal Action 28
Ms S was a Kosovan refugee. She and her husband lost contact with three of their
daughters in Kosovo, but reached the UK with their adult children. After being
granted refugee status, their NASS accommodation was withdrawn and they made
applications for homelessness assistance. Ms S supplied medical evidence of her
depression and a consultant psychiatrist diagnosed PTSD. Her GP reported that she
was on high-dose anti-depressants, was mentally unstable, had nightmares, flashbacks
and was self-neglecting. The council obtained advice from Dr Keen at Nowmedical.
He did not examine Ms S or speak with any of her doctors. A decision was she was
not vulnerable was upheld on review and at the s.204 appeal.
The Court of Appeal allowed a second appeal. The reviewing officer had wrongly
failed to take account of one medical report and had been plainly wrong to consider
that another added nothing. It reminded local authorities to take account of different
medical expertises when considering conflicting medical opinion (in this case a
psychiatrist and a GP), and to take into account whether or not the advising doctor has
examined the applicant. A reference in the review letter to the advice from
Nowmedical being “impartial” with the implication that the medical opinions
submitted on behalf of the applicant were not was most unfortunate.
Duty to secure interim accommodation s.188(1)
5. R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Ct
Where a person is homeless because his/her accommodation is not reasonable to
continue to occupy, the accommodation of the homeless at that home could never be
regarded as suitable, even for a short time.
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6. R (Carstens) v Basildon DC
CO/9231/2006
[2007] Legal Action September 18, Admin Ct
A disabled man applied to Basildon for homelessness assistance. Temporary
accommodation was arranged in Southend. The claimant could not raise the money to
travel to Southend until the following day. By the time he got there, he found that the
council had cancelled the booking. The claimant’s advisers were informed that the
s.188 duty had been performed and no further accommodation would be provided. He
brought judicial review proceedings and obtained an interim injunction requiring the
council to accommodate him until a s.184 decision had been notified to him or until
the judicial review claim had been determined. The judge was satisfied that the
claimant had not rejected accommodation in such a way as might have caused the
duty to be brought to an end.
7. Complaint against Eastleigh BC
10 September 2007, LGO 06/B/07896
[2007] Legal Action November p38
The complainants and their four children were evicted from their home following a
possession order obtained by their mortgage lender and applied for homelessness
assistance. They complained that the council had not provided interim
accommodation and that they had spent seven weeks (including the Christmas period)
sleeping on floors provided by their friends or relatives, and the male complainant had
slept in a car for three weeks. The council said that bed and breakfast accommodation
had been offered and declined. The Local Government Ombudsman found that there
was no evidence to support the council's contention, interim accommodation should
have been provided and the s.184 decision should have been made within the 30 day
maximum period suggested by the Code of Guidance. £3,000 compensation was
recommended.
Homelessness ss 175 - 177
8. R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Ct
The Claimants were secure tenants of Birmingham City Council living in profoundly
overcrowded and unsatisfactory accommodation. Once the Council had accepted that
the Claimants had made homeless applications, it found that they were homeless
because the accommodation was not reasonable for any of them to continue to
occupy.
9. Watson v Plymouth City Council
[2006] EWCA Civ 1702
[2007] Legal Action May 31, CA
Ms Watson made a homeless application claiming that she had been driven to leave
her partner’s home on the breakdown of their relationship. The council provided
interim accommodation but concluded that the couple were still in a relation and
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found that she was not homeless. The appeal was dismissed and Ms Watson was
refused permission to bring a second appeal. The council, having been satisfied that
she and her partner were still a couple had been entitled to draw the inference that he
would have been content for her to continue to stay at his home.
10. Elrify v Westminster City Council
[2007] EWCA Civ 332
[2007] Legal Action May 31, CA
The claimant owned his home (having purchased it under RTB). Using the room
standard test for statutory overcrowding, it was overcrowded by one person. The
council decided that he was not homeless because it was reasonable to continue to
occupy the accommodation. The Court of Appeal quashed the decision. The space
standard for statutory overcrowding had not been considered and under that standard
the excess was two and a half people. This was a relevant matter and the decision
would need to be reconsidered.
11. Khadija Ali v Bristol City Council
[2007] Bristol County Court 21 June 2007
[2007] Legal Action October p26
Mrs Ali was an assured shorthold tenant of an overcrowded house which had been
assessed as a Category 1, Band C hazard (Housing Act 2004 Part 1) and a prohibition
notice was served. The notice was suspended so long as Mrs Ali remained in
occupation. There was a £12.50 per week shortfall between her contractual rent and
housing benefit and she lived on income support. Her landlord had served a Housing
Act s.21 notice. Bristol found her to be not homeless because she had property
reasonable to continue to occupy. The County Court Judge quashed the decision. The
council had not given clear reasons why, despite the guidance at para 17.15 of the
Code, the premises were reasonable to occupy after being declared a Category 1
hazard. The comparators relied on by the council when referring to local housing
conditions in its district were wrong. The reasons given why she could not afford the
shortfall were not full, clear and intelligible. The reviewing officer had not explained
the departure from the guidance at para 8.32 of the Code, nor had he even referred to
it.
12. Harouki v Kensington & Chelsea RLBC
[2007] EWCA Civ 1000, 7 October 2007
[2007] Legal Action December (forthcoming)
Three-bedroom flat, occupied by applicant, her husband and 5 children, was
statutorily overcrowded and the applicant was committing an office. The local
authority found that it was reasonable for her to continue to occupy the
accommodation and she was not homeless. The first-instance Judge dismissed her
appeal and the Court of Appeal dismissed a second appeal. In assessing whether the
flat had been reasonable to continue to occupy, the council had been entitled to take
into account the fact that there were many families even more severely overcrowded
in its area (s.177(2)). It did not automatically follow that because a home was
statutorily overcrowded, or that an offence was being committed by remaining in it,
that it could not be reasonable for a tenant to continue in occupation. Further, s.210
(suitability) did not provide that overcrowded accommodation could never be
suitable, simply that the overcrowding provisions needed to be taken into account
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when the local authority decides what to offer. Note that the judgement contains s.210
prior to amendment in 2006 to include references to Housing Act 2004. Note also that
the applicant had applied to a very hard-pressed local authority.
Eligibility s185
13. From 1 June 2006, the relevant Regulations relating to homelessness applications (made
on or after 1 June 2006) are the Allocation of Housing and Homelessness (Eligibility)
(England) Regulations 2006 (SI 2006/1294).
14. They reflect the new Immigration (European Economic Area) Regulations 2006 (SI
2006/1003).
15. Reg 6(2)(d) “Other persons from abroad” who are excepted from the habitual residence
test was amended from 1 January 2007 to read:
“a person who is treated as a worker for the purpose of the definition of “qualified
person” in regulation 6(1) of the EEA Regulations pursuant to either—
1. regulation 5 of the Accession Regulations 2004 (application of
the 2006 Regulations in relation to accession State worker
requiring registration), or
2. regulation 6 of the Accession Regulations 2006 (right of
residence of an accession State national subject to worker
authorisation) (SI 2006/3340);”
16. A2 nationals are governed by the Allocation of Housing and Homelessness (Eligibility)
(Amendment) (No 2) Regulations 2006 SI 2006/3340 and apply to homelessness
applications made on or after 1 January 2007 and apply to Bulgarian and Romanian
nationals. They apply the Accession (Immigration and Worker Authorisation)
Regulations 2006 (SI 2006/3317) to eligibility for allocation and homelessness assistance.
Those latter Regulations create the concept of “an accession State national subject to
worker authorisation”.
17. An accession State national subject to worker authorisation will only be eligible for
assistance during such time as she or he holds an accession worker authorisation
document and is working in accordance with the conditions set out in that document.
18. A2 nationals are not accession State nationals subject to worker authorisation if they fall
into one of these categories:
a. A person who has legally (with leave to remain) worked in the UK
without interruption for a period of 12 months falling wholly
before, or partly, or wholly after 31 December 2006, or who has
had leave to remain without any restriction on taking employment;
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b. A person who holds a registration certificate to the effect that he or
she is a highly skilled person and has unconditional access to the
labour market;
c. A person who is the spouse or civil partner of a UK national or a
person settled in the UK;
d. A person who is in the UK as a student, working up to 20 hours a
week during term time, full term during vacation, or working for
four hours after the end of his course and holds a registration
certificate that includes a statement that he is a student who has
access to the UK labour market.
19. To be eligible, an A2 national who falls into one of those categories would either have to
show that he or she is habitually resident or falls within one of the other exceptions to
habitual residence at Reg 6(2).
20. R (Couronne) v Crawley BC & R (Bontempts) v Secretary of State
[2007] EWCA Civ 1086, 2 November 2007
[2007] Legal Action December 2007 (forthcoming)
The Claimants originated from the Chagos Islands, were unlawfully displaced to
Mauritius and, as British citizens, had come to the UK. Applications for homelessness
assistance were refused on the grounds that they were not habitually resident (Reg
4(1)(a) Homelessness (England) Regulations 2000 No 701/2000, the Regulation in
force at the date of application). Their claims for judicial review and subsequent
appeal were dismissed. The fact that their original displacement had been unlawful
did not require the government to make special provision for them. They had not been
subject to unlawful discrimination on grounds of race because any other British
Citizens from outside the Common Travel Area would have been treated in the same
way. Articles 8 & 14 had not been infringed and Protocol 1, Art 1 did not apply.
21. Ibrahim v Harrow LBC & SSHD
Rec Hochauser QC, Central London CC, 18 October 2007
The Appellant wife was a Somali national, married to a Danish citizen. They had
separated. They had four children, all Danish citizens. The two older children had
been in state education since they arrived in the UK in 2003. The husband had been a
worker from October 2002 to May 2003. Between June 2003 and March 2004, he
claimed incapacity benefit. He was declared fit to work, and left the UK. He returned
in December 2006 and had not worked. It was not disputed that the husband ceased to
be a “qualified person” shortly before he ceased to reside in the UK. The Appellant
did not work. The local authority found that she did not have the right to reside in the
UK and therefore she was subject to immigration control. She claimed that she had an
enforceable Community law right to reside in UK as the parent and primary carer of
children in education (Baumbast v UKi itself relying on Article 12 of Regulation
(EEC) No 1612/68). Subsequent to the decision in Baumbast, the EU had passed
Directive 2004/38/EC on the Right of Citizens of the Union and their Family
Members to move and reside freely within the territory of the Member States. The
Recorder held that the 2004 Directive was not a full and final codification and had left
untouched Article 12 of the 1968 Regulation. Article 12 was designed to enable
children to complete their education within a member state, to ensure that they do not
suffer any disadvantage by reason of their parents having exercised free movement
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rights. The fact that the husband had ceased to be a qualified person as a result of
ceasing to be unfit for work, rather than leaving the UK, was a novel factual situation
but similar considerations applied as in Baumbast. The Appellant had a directly
enforceable right by reason of being the parent and primary carer of children who had
acquired directly effective rights of residence.
22. There are other Baumbast points in the pipeline.
Government action or inaction?
23. HA 1996 section 185(4) contains an exclusion of ineligible persons for the purposes of
assessing homelessness and priority need. That provision was declared incompatible with
Arts 8 and 14 of the ECHR by the Court of Appeal in Westminster CC v Morris [2005]
EWCA Civ 1184, [2005] HLR 8.
24. What has happened as a result of Morris? A declaration of incompatibility does not
affect the validity, continuing operation or enforcement of the provision subject of the
declaration (section 4(6)(a) Human Rights Act 1998). There is power to take remedial
action if the Minister considers “that there are compelling reasons” to order
amendments to the legislation (section 10(2) Human Rights Act 1998). No remedial
orders have been laid. In reply to a question from Andrew Dismore MP about what
action the Government was taking in response to the declaration of incompatibility of
HA 1996 s185(4), the Housing Minister (Yvette Cooper MP) said that “the
incompatibility will be remedied by putting housing authorities under a new interim duty
to secure accommodation for the applicant and all household members for a temporary
period in order to give them an opportunity to regularise their immigration status. Once
the immigration status was regularised, further consideration off the housing
application would proceed and the interim duty to secure accommodation would end.
ECHR rights must be taken into account when applications for leave to enter or remain
or for citizenship are considered. So, in any case where it was compatible for an
application for leave to be refused, it would also be compatible for a housing authority
to decide that there was no substantive duty to secure accommodation”. She is
consulting on the legislative means to bring forward this remedy.
25. Clause119(6) Criminal Justice and Immigration Bill (to be considered by Parliament in
the current session) provides:
“A designated person shall not be treated—
(a) as a person subject to immigration control, for the purposes of section 119(1)(b) of
the 1999 Act (homelessness: Scotland and Northern Ireland), or
(b) as a person from abroad who is not eligible for housing assistance, for the purposes
of section 185(4) of the Housing Act 1996 (c. 52) (housing assistance).”
26. A “designated person” is defined at clause 115 and is either a foreign criminal awaiting
deportation, or a member of the family of such.
27. A memorandum from the Ministry of Justice on the Bill refers to Morris and states:
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“Action has not yet been taken to remove the incompatibility and so clause 119(6) is
necessary. However, if a remedial order under section 10 of the Human Rights Act
1998 is used to remove the incompatibility clause 120(7) provides that clauses 119(6)
may be amended or repealed. It is submitted that this is an appropriate use of
delegated power as it will allow designated persons to be treated in the same manner
as persons subject to immigration control once there is a remedy for the
incompatibility. This will be achieved by way of the remedial order made under
section 10 of the Human Rights Act which is exercisable by statutory instrument
subject to the draft affirmative procedure unless there is great urgency.”
28. R(Bangura) v Southwark LBC
[2007] EWHC 1681 (Admin)
[2007] Legal Action September 19, Admin Ct
The discretion to accommodate the homeless (who are not in priority need) available
to a council under HA 1996 s192(3) was not elevated into a duty by the fact that the
claimant had been deprived of priority need by a provision not compatible with the
Convention.
Priority Need s.189 and Priority Need Orders
Dependent children (s.189(1)(b))
29. Holmes-Moorhouse v Richmond upon Thames LBC
[2007] EWCA Civ 970, 10 October 2007
[2007] Legal Action November p38
By consent, the family court had made a shared residence order, and ordered that the
children were to spend alternate weeks and half their school holidays with each parent.
The father made a homeless application and was found not to have a priority need. The
first-instance Judge dismissed his appeal but the Court of Appeal allowed a second
appeal. Because a residence order made in “contested” family proceedings may be
determinative of a housing authority's obligations, the authority should, where
appropriate, have notice of those proceedings. A residence order made by consent did not
bind the housing authority on the issue of s.189(1)(b) but the fact that the child's parents
had agreed arrangements would be a factor to take into account. If the authority decided
that it was not reasonable to expect a child to live with the applicant, the applicant could
return to the family court for a reconsideration of the consent order. The authority may
not have regard to the scarcity of resources when determining whether it was reasonable
to expect a child to live with the applicant. The size of accommodation secured may
reflect the length of expected residence. “Cramped quarters may be suitable where
residence is limited”. Although the reviewing officer had taken account of the consent
order and the Code of Guidance, there had been an error in eliding the concept of the
child merely “staying” with the applicant and “residing with”. Once a residence order had
been made, even by consent, the child was “residing with”, not “staying”.
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Vulnerability s.189(1)(c) and Priority Need Orders
30. Khelassi v Brent LBC
[2006] EWCA Civ 1825
[2007] Legal Action February 31, CA
One psychiatrist said about the applicant: “this gentleman describes frequent suicidal
thoughts and in my view there is a real and substantial risk of him killing himself… it
is my view that his psychological difficulties would distinctly hinder him in any
attempt to seek out accommodation including his lack of concentration, lack of self
confidence and lack of motivation. It is my view that were this gentleman to be
homeless then there would be a substantial risk of his psychological state worsening
even further”. Nowmedical advised the local authority “his condition is not
substantial nor such as to impede reasonable function and activity…”. A second
psychiatrist prepared a report “he came across as extremely depressed and hopeless.
He entertained suicidal thoughts and recently stated hearing voices threatening in
nature. Mr Khelassi has entered suicidal ideas and has actually had one suicide
attempt last month… I would be extremely concerned bout further deterioration of his
mental state, which may culminate in a crisis admission and perhaps even successful
suicide attempt.” Nowmedical advised a second time, after its doctor had personally
examined Mr Khelassi, and said “I found him to be depressed to a moderate extent… I
found no definite psychotic systems and while he has thoughts of self-harm there is no
actual suicidal intend. …Overall I do not consider his depression of a type or severity
such as to significantly impede his reasonable function, nor do I see material risk to
his health from homelessness”. The first-instance Judge held:
 there was a sharp difference of opinion between
Nowmedical and the applicant’s psychiatrist;
 the decision letter had not grappled with this difference;
 where there is a risk of suicide, a great deal was at
stake. Given the body of psychiatric evidence it was
necessary to obtain an opinion more authoritative than
Dr Keen, especially bearing in mind the disagreement
on the key issue of vulnerability which already existed
between him and the psychiatrist.
The Court of Appeal refused Brent permission to appeal and also stated that if
permission had been given they would have found that the judge was “plainly right”.
31. Shala v Birmingham City Council
[2007] EWCA Civ 624
[2007] August Legal Action 28, CA
Ms S was a Kosovan refugee. She and her husband lost contact with three of their
daughters in Kosovo, but reached the UK with their adult children. After being
granted refugee status, their NASS accommodation was withdrawn and they made
applications for homelessness assistance. Ms S supplied medical evidence of her
depression and a consultant psychiatrist diagnosed PTSD. Her GP reported that she
was on high-dose anti-depressants, was mentally unstable, had nightmares, flashbacks
and was self-neglecting. The council obtained advice from Dr Keen at Nowmedical.
He did not examine Ms S or speak with any of her doctors. A decision was she was
not vulnerable was upheld on review and at the s.204 appeal.
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The Court of Appeal allowed a second appeal. The reviewing officer had wrongly
failed to take account of one medical report and had been plainly wrong to consider
that another added nothing. It reminded local authorities to take account of different
medical expertises when considering conflicting medical opinion (in this case a
psychiatrist and a GP), and to take into account whether or not the advising doctor has
examined the applicant. A reference in the review letter to the advice from
Nowmedical being “impartial” with the implication that the medical opinions
submitted on behalf of the applicant were not was most unfortunate.
32. Johnson v Wandsworth LBC
[2007] EWCA Civ 541
[2007] Legal Action September 18
The review letter was “longish” and set out explicitly, at the beginning and at the end,
the principles taken from Pereira. The first-instance Judge dismissed an appeal. The
claimant sought a second appeal on the ground that in the body of the decision letter,
the reviewing officer had in fact applied a test of “reasonable function” and not
“injury or detriment”. Permission for a second appeal was refused. The recital of the
correct test at the opening and close of the letter, and the application of it in the
conclusions, showed that the reviewing officer had well in mind issues of injury and
detriment. The use of the phrase “reasonable function” did not suggest that he was
failing to apply the correct test.
33. Benson v Lewisham LBC
[2007] Central London County Court 2 July
[2007] Legal Action October p26
The applicant was aged 53, street homeless, with a history of asthma, arthritis, gout,
depression, alcohol dependency & high blood pressure. He completed the council’s
medical form and supplied letters and records from his GP, hospital and psychiatrist
(the latter expressly stating that his street homelessness had resulted in him becoming
increasingly vulnerable). The council’s in-house medical adviser advised that none of
his problems, taken together or separately, impeded his reasonable function. A
decision that he was not vulnerable was made and upheld on review. The County
Court Judge varied the decision to one that Mr Benson had a priority need. The
decision taker had failed to make adequate inquiries of Mr Benson’s medical advisers
and had failed to give a reasoned explanation for preferring the in-house medical
advice. The in-house medical adviser had failed to give adequate reasons for
departing from the body of medical evidence before her. Both the initial decision and
the review decision could fairly be described as “rubber-stamping” the in-house
medical adviser’s opinion. The reviewing officer ought to have appreciated that Reg
8(2) had been triggered by the inadequacies of the original decision and ought himself
to have made adequate inquiries. There had been no composite assessment as required
by Crossley v Westminster City Council. On the material available, the only
rational conclusion was that there was a priority need.
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Vulnerability as a result of ceasing to occupy accommodation by reason of violence
Art 6 Homelessness (Priority Need for Accommodation) (England) Order 202 SI
2002/2051).
34. Logan v Havering LBC
Romford County Court
[2007] May Legal Action 31
The applicant had given evidence against his co-accused in a trial for robbery. He had
served a shorter prison sentence. Whilst in prison he had assaulted four times, after his
release he had been violently attacked and had left his parental home as a result of
threats of violence received. A week before the review decision, threatening graffiti
referring to him were written at his hostel and he received threats there. The council
decided he was not vulnerable. The first-instance Judge held that the council had had
to ask itself 3 questions:
(1)
did he leave his parents’ home due to threats?
(2)
Were those threats likely to be carried out?
(3)
Was he vulnerable?
The first question had been clearly answered in his favour. It was impossible to see a
clear answer to the second in the review decision or the council’s witness statement.
On the third question, a person who becomes street homeless is less likely to be able
to fend for himself if subject to threats of violence and is less likely to be able to
protect himself. This issue needed to be addressed.
16 and 17 years old
Art 3 Homelessness (Priority Need for Accommodation) (England) Order 2002 SI
2002/2051.
35. R(M) v Hammersmith & Fulham LBC
[2006] EWCA Civ 917
[2007] HLR 6, CA
Ms M applied to the council as homeless when she was 17, after being asked to leave
the parental home by her mother. The council accepted the homelessness application
and was satisfied that Ms M might be both homeless and have a priority need. It
provided accommodation under HA 1996 section 188 pending further enquiries.
Ms M sought judicial review of the council, as a social services authority, for failing
to recognise her as a “child in need” and for failing to provide her with
accommodation under Children Act 1989 Part III ss17-20. Newman J refused
permission to claim judicial review (see [2006] EWHC Admin 664 and 2006 May
Legal Action 34)
The Court of Appeal dismissed an appeal against that decision. The council had
correctly accepted a duty under the housing legislation and performed it. A teenage
applicant should not be turned away from a housing authority to seek assistance from
social services. While a situation might arise in which a homelessness officer ought
properly to secure a social services assessment that stage had not been reached on the
facts of this case.
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The House of Lords has granted permission for a further appeal which will be heard
on 14 and 15 January 2008.
Intentional Homelessness s.191
36. Bennett v Croydon LBC
[2006] EWCA Civ 1292
[2006] December Legal Action 20, CA
The claimant was a Lambeth council tenant. In March 2003, she left her family in
that flat and went to act as live-in carer to her mother who was the tenant of a
Croydon council house. Before the mother died in February 2004, the claimant’s
family had also moved into the house. The claimant gave notice to quit the Lambeth
flat but was unsuccessful in her attempt to remain in the Croydon house and was
evicted by the council. On her subsequent application, the council found her to have
become homeless intentionally. HHJ Ellis dismissed an appeal brought under HA
1996 s204. Ms Bennett sought permission to bring a second appeal asserting that
although the initial decision had addressed the question of whether the mother’s house
was “settled accommodation” the reviewing officer had not done so.
The Court of Appeal dismissed a renewed application for permission. The question of
“settled accommodation” did not arise on the facts. It might have done if the claimant
had given up the flat when she moved to the house to care for her mother. Then a
question would have arisen as to whether that deliberate act had been “spent” by the
acquisition of a settled home with her mother. But “[I]t can hardly be claimed that the
applicant obtained settled accommodation after she gave up her flat in the very short
time before it was made clear to her that she had no right to remain in the house.”
(para [6])
37. F v Birmingham CC
[2006] EWCA Civ 1427
[2007] HLR 18, CA
In 2002 the claimant, then a young single parent, gave up the tenancy of her council
flat to move to a private rented house. She failed to secure housing benefit to pay the
rent and was evicted in 2003. On her subsequent homelessness application, the
council found that she had become homeless intentionally by giving up her flat. That
decision was upheld on review and in the county court. A further appeal was pursued
on the basis that the council had not dealt with her contention that she had thought (in
ignorance of the true position) that housing benefit would pay the full rent on her new
home. The Court of Appeal dismissed the appeal. The council had expressly rejected
the suggestion that she had been told that the full rent would be covered by HB or that
she genuinely thought it would be. The facts found showed that she moved without
knowing whether HB would be paid or being bothered about the rent. She had
proceeded on a “wing and a prayer”. No need had arisen for the council to consider
ignorance, in good faith, of a material fact.
38. Houghton v Sheffield City Council
[2006] EWCA Civ 1799
[2007] March Legal Action 18, CA
14
Mr Houghton was a secure tenant of the council. As a result of housing benefit
problems, he had arrears of over £800 and the council issued possession proceedings.
At the hearing, housing benefit had been restored and backdated, leaving only £13
arrears. The claim was adjourned for four months. At the end of that period, the
arrears were £7. The council restored the claim, obtained a possession order and
executed it. He made a homeless application and the council decided that he was
intentionally homeless because his failure to co-operate with the housing benefit
department had caused the interruption of benefit, leading to his arrears and eviction.
The first-instance Judge varied the decision to one that the claimant was not
intentionally homeless and described the council’s decision as “bizarre”. The Court of
Appeal refused the council permission to bring a second appeal. May LJ said that the
judge was “entitled, in my judgement, to conclude on the facts of this case that a
decision that he was intentionally homeless when his tenancy was terminated when
there was no, or virtually no, arrears of rent and when he must have co-operated with
the housing department was bizarre”.
39. Watchman v Ipswich Borough Council
[2007] EWCA Civ 348
[2007] May Legal Action 31
Despite a history of rent arrears and other debts, the applicant took out a mortgage to
buy her rented home. The instalments were higher than the rent and the rate of
repayments gradually increased. Her husband lost his job and she fell into evicted.
The property was repossessed. The council found that she had become intentionally
homeless because, given her financial history, it was inevitable form the outset of the
mortgage that she would get into arrears and lose the home. The first-instance Judge
dismissed the appeal and the Court of Appeal dismissed a second appeal. The council
had been entitled to find that the homelessness was caused by taking out the mortgage
and not the loss of Mr Watchman’s job. The House of Lords refused permission to
appeal.
40. Rowley v Rugby Borough Council
[2007] EWCA Civ 1755
[2007] Legal Action June 37, CA
Ms Rowley and her partner moved out of their private rented flat and made a
homeless application. They told the council that their landlord had said he was selling
the property with vacant possession. After inquiries of the landlord, the council
invited the council to sign and return a tear-off slip on a letter which set out that they
had given up the tenancy, had given the landlord a month’s notice and had moved to
be nearer their family. When the slip was signed and returned, a decision was made
that they had become homeless intentionally. The first-instance Judge dismissed the
appeal and the Court of Appeal dismissed a second appeal. The couple had
unequivocally agreed the facts put to them in the letter. The initial decision contained
no irregularity or deficiency triggering Reg 8(2) Allocation of Housing and
Homelessness (Review Procedures) Regs 1999 (SI 1999/71).
41. Eren v Haringey LBC
[2007] EWCA Civ 1796
[2007] Legal Action June 38, CA
15
Ms Eren separated from her husband and left their matrimonial home. She made a
homeless application to Enfield which decided that first she was not homeless and
later (after the tenancy of the matrimonial home had been surrendered) that she was
intentionally homeless. She subsequently applied to Haringey and did not disclose the
former matrimonial home, her application to Enfield or interim accommodation
secured for her by Enfield. After Haringey had obtained Enfield’s file, she alleged
that she had been in fear of her husband and that another woman had impersonated
her when the keys had been returned and the tenancy surrendered. Haringey decided
that her account was inconsistent with that earlier given to Enfield and lacked
credibility. It decided that she had become homeless intentionally. At first-instance
the appeal was allowed. The Court of Appeal reversed the Judge and upheld the
council’s decision. Haringey had given the application a full and fair assessment and
had not simply rubber-stamped the Enfield decision.
42. Steward v Kingston Upon Thames RLBC
[2007] EWCA Civ 565
[2007] Legal Action July 33 , CA
Ms Steward gave up conventional housing to live as a traveller in a caravan. She was
never able to obtain an authorised site and was repeatedly evicted from unauthorised
sites. On her subsequent homelessness application she was found to have become
intentionally homeless. The Court of Appeal dismissed a second appeal against that
decision. The council had been entitled to hold that Ms Steward had had no "settled"
accommodation since giving up her former home. The courts were not failing to give
effect to the need to protect the gypsy way of life in making that decision as Ms
Steward was not a "gypsy".
43. Moran v Manchester City Council
[2007] Manchester County Court
[2007] Legal Action July 33
The applicant had been asked to leave a women’s refuge. The council’s decision that
she had become homeless intentionally was quashed by the County Court Judge. The
council had been wrong to treat crisis accommodation in a refuge as accommodation
reasonable for an applicant “to continue to occupy” for the purposes of s.191. The
Court of Appeal has granted permission to appeal.
44. Denton v Southwark LBC
[2007] EWCA Civ 623
[2007] Legal Action August 29, CA
The claimant was aged 20 and had lived in his mother’s home. She had excluded him
after warnings about his bad behaviour, including rudeness and use of drugs in her
home. Southwark decided that he had become homeless intentionally. The firstinstance Judge allowed his appeal but this was reversed by the Court of Appeal on a
second appeal. The Court held that the council had been entitled too find that the
cause of the claimant’s homelessness was his own bad behaviour and this was a
“deliberate act”. His mother’s house rules had not been unreasonable and it followed
that it would have been reasonable for him to have to continued to live at home and to
have complied with the rules.
16
45. Gilby v Westminster City Council
[2007] EWCA Civ 604
[2007] Legal Action August 29, CA
The claimants gave up their long-term privately rented home and went to live in the
wife’s step-sister’s council flat. When Westminster repossessed the flat, they applied
for homelessness assistance. The council initially decided that they had become
homeless intentionally because they had been unlawful subtenants of the step-sister
and thus the council flat did not constitute settled accommodation. On review, the
decision that they had become homeless intentionally was upheld but on the basis that
they had been no more than bare licenses staying only temporarily with the step-sister.
The appeal was dismissed at first-instance. On a second appeal, it was argued that the
shift in reasoning had required the reviewing officer to comply with Reg 8(2) of the
Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI
1999/71) and allow an oral hearing. The Court of Appeal held that there was no
inconsistency in the reasoning between the s.184 and the review decisions. On either
view, the council had decided that the claimants had not had settled accommodation
since giving up their last secure home and the requirements of Reg 8(2) had not been
triggered.
46. Amanuel v Southwark LBC
[2007] EWCA Civ 854
[2007] Legal Action September 18, CA
The claimant was a refugee from Eritrea. He had been given a place in a resettlement
hostel conditional on his acceptance of any reasonable offer of accommodation. He
was offered a flat by the Peabody Trust but refused it because the flat had no central
heating and he had health problems. Had he accepted it, Peabody would have installed
hearing. He did not pursue a right of appeal against the Peabody offer. He was
required to leave the hostel and made an application for homelessness assistance.
Southwark decided that he had become homeless intentionally because he had lost his
place in the hostel because of his unreasonable refusal of the offered accommodation.
The first-instance Judge dismissed an appeal. Permission to bring a second appeal was
refused. Whether or not the claimant had known of Peabody’s offer to install central
heating was a factual matter for the council. Whether the council had been right to
make that finding was not an issue that justified permission for a second appeal.
47. Osei v Southwark LBC
[2007] EWCA Civ 787
[2007] Legal Action September 18, CA
The claimant and his family rented a room in a shared flat in Spain. The claimant
came to the UK to find work and stayed with a friend. He accumulated funds over
several months and then returned to Spain. He cleared existing rent arrears on the
room in Spain, terminated the tenancy and brought his wife and children to the UK.
The friend could not accommodate the whole family. He made an application for
homelessness assistance to Southwark. Southwark found that he had become
homeless intentionally as a result of leaving the accommodation in Spain. The firstinstance Judge dismissed an appeal. The claimant pursued a second appeal to the
Court of Appeal, arguing that the council had failed to have regard to the fact that the
flat in Spain had been overcrowded, as it had been occupied by two other households
as well as the claimant’s. The appeal was dismissed. The council had proceeded on
the basis that the flat was overcrowded, but had been entitled to find that despite that,
17
it was reasonable for the claimant to continue to occupy it rather than giving it up to
bring his family to even more overcrowded accommodation in London. The council
was entitled to have regard to housing circumstances in its own district in making that
assessment.
48. Abdullahi v Brent LBC
[2007] EWCA Civ 885
[2007] Legal Action October p26, CA
Mrs Abdullahi lived in assured shorthold tenancy provided by a housing association.
Wrongly, her housing benefit was assessed so as to leave a shortfall of £57.50 per
week from the contractual rent. She was evicted having accumulated arrears of over
£6,000. She made a homeless application and Brent found that she had become
homeless intentionally. The Law Centre submitted on her behalf that she had been in
ignorance of the true position having believed that it was for the housing association
and housing benefit department to deal with the fact that the rent had been restricted.
The review decision upheld the original decision. The first-instance Judge quashed the
review decision, finding that the reviewer had not fully explored the reasons for the
rent arrears or given adequate reasons for concluding that she had not acted in
ignorance and in good faith (HA 1996 s.191(2)). The Court of Appeal refused the
council permission to bring a second appeal. The Law Centre’s point required proper
coverage in the review but did not get it. Moreover, there was no important point of
principle or practice justifying permission for a second appeal.
Referral to another local housing authority s.198
49. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations
2006 (SI 2006/1294) repealed the “period as may be prescribed” at s.198(4) for
applications made on or after 1 June 2006. The Allocation of Housing and
Homelessness (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/2527)
specified the period as being the aggregate of five years plus the period between the date
of the original application and the date when the applicant was first placed in
accommodation in that district, for applications made on or after 9 October 2006.
Reviews and appeals ss.202 - 204
50. Rowley v Rugby Borough Council
[2007] EWCA Civ 1755
[2007] Legal Action June 37, CA
Ms Rowley and her partner moved out of their private rented flat and made a
homeless application. They told the council that their landlord had said he was selling
the property with vacant possession. After inquiries of the landlord, the council
invited the council to sign and return a tear-off slip on a letter which set out that they
had given up the tenancy, had given the landlord a month’s notice and had moved to
be nearer their family. When the slip was signed and returned, a decision was made
that they had become homeless intentionally. The first-instance Judge dismissed the
appeal and the Court of Appeal dismissed a second appeal. The couple had
unequivocally agreed the facts put to them in the letter. The initial decision contained
18
no irregularity or deficiency triggering Reg 8(2) Allocation of Housing and
Homelessness (Review Procedures) Regs 1999 (SI 1999/71).
51. Eren v Haringey LB
[2007] EWCA Civ 1796
[2007] Legal Action June 38, CA
Sufficiency of reasons:
The review decision letter is “written by one layman to another. This a decision letter
from a housing review officer. It is not a judgement or a statute. It should not be
subjected to close textual analysis.”
52. Gilby v Westminster City Council
[2007] EWCA Civ 604
[2007] Legal Action August 29, CA
The claimants gave up their long-term privately rented home and went to live in the
wife’s step-sister’s council flat. When Westminster repossessed the flat, they applied
for homelessness assistance. The council initially decided that they had become
homeless intentionally because they had been unlawful subtenants of the step-sister
and thus the council flat did not constitute settled accommodation. On review, the
decision that they had become homeless intentionally was upheld but on the basis that
they had been no more than bare licenses staying only temporarily with the step-sister.
The appeal was dismissed at first-instance. On a second appeal, it was argued that the
shift in reasoning had required the reviewing officer to comply with Reg 8(2) of the
Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI
1999/71) and allow an oral hearing. The Court of Appeal held that there was no
inconsistency in the reasoning between the s.184 and the review decisions. On either
view, the council had decided that the claimants had not had settled accommodation
since giving up their last secure home and the requirements of Reg 8(2) had not been
triggered.
53. R (Casey) v Restormel BC
[2007] EWHC 2554 (Admin), 7 November 2007, Admin Ct
Application for judicial review against the Defendant’s refusal to extend time for a
request for a review. Permission granted after an oral hearing of the application for
permission and the Defendant’s application to discharge an earlier interim injunction,
granted out of hours on the telephone was an issue as to when the Claimant was
“notified” of the s.184 decision and therefore when her time for requesting a review
began to run, and a challenge to the Defendant’s refusal to extend time if the request
was out of time. The Claimant was six months pregnant and would have been
sleeping in her car, save for the injunction. The application was issued and the
injunction granted on 27 July 2007. The Defendant filed its acknowledgement of
service on 29 August 2007 and, on 30 August 2007, applied to discharge the
injunction. The Administrative Court Office listed the Defendant's application for
hearing on 20 November 2007. The Defendant filed a N463 asking that its application
be considered within three weeks and it was then heard on 3 October 2007. Munby J
granted permission to the Claimant, holding that there was an arguable case that the
issue of when the Claimant was notified was a “precedent fact” which should be
determined by the Court. The Claimant and her witnesses were to attend the full
hearing, give evidence and be cross-examined. He also extended the injunction and
19
laid down a tight timetable (final hearing no later than 7 November 2007, eventually
fixed for 5 November 2007). He described the delay by the Administrative Court
office as “simply indefensible” referring to Magna Carta “nulli vendemus, nulli
negabimus, aut differemus, rectum aut justiciam”ii.
Discretionary powers to provide accommodation ss.188(3) and 204(4)
54. Pending review, the power is to be found at s.188(3) HA 1996. Any refusals to exercise
the power can only be challenged by judicial review.
55. Pending appeal, the power is to be found at s.204(4) HA 1996. Refusals to exercise the
power are challengeable by way of statutory appeal to the County Court pursuant to
s.204A HA 1996.
56. In both cases, the local housing authority should consider the whole of the circumstances,
including the strength of the applicant’s case on review (or appeal), whether any new
material, information or argument has been raised since the initial decision was made, the
personal circumstances of the applicant and the consequences for the applicant if
accommodation is not provided (R v Camden LBC ex parte Mohammed (1998) 30
HLR 315, QBD).
57. Lewis v Havering LBC
[2006] EWCA Civ 1793
[2007] HLR 20, CA
On a request for accommodation pending appeal, the local housing authority must
take into account the appellant’s grounds of appeal. In many cases it will be
unnecessary for the authority to refer to the grounds in any detail, in some cases there
may be an important and striking ground which requires specific comment; where
there are a number of grounds of appeal, it would rarely be necessary for the authority
to consider each of them separately.
58. R (Abdi) v Lambeth LBC
[2007] EWHC 1565 (Admin)
[2007] Legal Action August 29
The council officer who refused interim accommodation pending review was the
same officer who had taken the initial s.184 decision that was the subject of the
review. A claim in judicial review was dismissed. Neither the statutory scheme nor
any general principle of fairness nor the need to avoid the appearance of bias required
that the two decisions should be taken by different officers.
59. R (Lawer) v Restormel Borough Council
[2007] EWHC 2299 (Admin), 12 October 2007, Admin Ct
[2007] Legal Action December 2007 (forthcoming)
Judgement given on return date following an interim mandatory injunction made out
of hours. The injunction had been applied for, and obtained, some nine days after the
relevant decision and no reference was made during the out of hours application to a
telephone call between the Claimant’s solicitor and the Defendant in which the
Defendant had set out its decision and applicable of the Mohammed factors. The
Claimant did not attend and her legal representatives appeared to be no longer
20
instructed. Munby J discharged the injunction, holding that the Claimant’s case was
hopeless. He reminded practitioners:
a. Of the heavy burden on anyone who seeks ex parte relief to make full
and frank disclosure, including specifically identifying all relevant
documents for the Judge and taking the Judge to the particular
passages, particularly so when applying on the telephone;
b. Of the exceptional nature of applying for relief without notice;
c. Of the need for compliance with the pre-action protocol, including at
the very least warning or informal warning of the intention to make an
application;
d. Service on the local authority’s legal department, in addition to the
housing department.
Duties to provide accommodation
The main housing duty s.193(2)
R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Ct
 The accommodation of the homeless at home could never be regarded as
suitable, even for a short time;
 It is a breach of the council’s duty to require the homeless at home to carry on
living there but there can be agreement between the parties to do so;
 Generally once a duty is accepted, it should not take longer than 6 weeks for
suitable accommodation to be provided and any longer period would need
clear justification.
Birmingham was granted permission to appeal these 3 bullet points. The Court of
Appeal heard the appeal on 8 – 9 October 2007.
60. Williams v Birmingham City Council
[2007] EWCA Civ 691
[2007] Legal Action August 29, CA
Following her eviction from a council house which had been her home for over 25
years, Ms Williams applied as homeless. The council accepted it owed her the main
housing duty (Housing Act 1996 s193) and said it would make a single offer of
suitable accommodation. It then offered accommodation in another part of its area.
Ms Williams sought a review on the basis that her son (aged 7) would have a long and
difficult journey on several buses to reach his school. The reviewing officer decided
that a change in a child's school was a not uncommon occurrence when a family
moved homes and that a change of school for this child would not disrupt his personal
or educational development. Ms Williams appealed contending that the reviewer had
failed to explore the real difficulties the school journey would pose for her son. That
appeal was dismissed in the county court and by the Court of Appeal. Given the
unchallenged finding by the reviewer that this particular child would not suffer on
changing schools, there had been no need to make enquiries into his difficulties in
reaching his existing school from a new home.
21
61. Abdullah v Westminster City Council
[2007] EWCA Civ (12 June 2007)
[2007] Legal Action November p38, CA
Mrs Abdullah was owed the main homelessness duty (HA 1996 s.193(2)). She and
her four children were refugees from Yemen and had been subject to racially
motivated attacks in the UK. She refused accommodation that was outside
Westminster’s area and submitted medical and other evidence contending that she
needed to be in Westminster where she had a social support network of friends and
family. A review decision that the accommodation had been “suitable” had been set
aside on appeal. On a second review, the reviewing officer considered the evidence
and decided that the accommodation had been “suitable”. The first-instance Judge
dismissed Mrs Abdullah’s appeal and her appeal to the Court of Appeal was
dismissed. The reviewing officer had sufficiently considered the medical and other
evidence. The conclusion that she could cope in another area was not wrong in law on
the available material. Although the medical evidence had not been entirely accurately
summarised by the reviewing officer, the thrust of it was that although it would have
been desirable for the family to stay in Westminster, they would not be unable to cope
elsewhere. A review decision was not to be construed as strictly as a will or statute.
Bringing the main housing duty to an end s.193(5) – (7B)
Refusing offers of s.193(2) accommodation (s.193(5))
62. Osseilly v Westminster City Council
[2007] EWCA Civ 1108, 5 October 2007
[2007] Legal Action November 2007 p39
The applicant refused an offer of accommodation made under s.193(2). A housing
officer decided that the offer had been suitable and the refusal had discharged the
s.193(2) duty. The applicant requested a review. By the date of the review, the
property was no longer available. The reviewing officer upheld the decision that the
duty had been discharged. The appellant argued that the review decision was
defective because, by its date, the once-offered property was not available and
therefore could not be suitable at that date. The first-instance Judge dismissed the
appeal and the Court of Appeal dismissed a second appeal. The reviewing officer had
been invited to decide whether the property was suitable “when refused”. Although
Mohammed v Hammersmith & Fulham LBCiii held that a review had to be
determined on the facts available at the date of the review, that had no application to
the instant case. Any other view would require the council to keep much-needed
accommodation empty, pending the review decision. The appellant could have
accepted the property and sought a review of its suitability and did not do so.
Refusing offers of Part 6 accommodation (s.193(7))
63. Omar v Birmingham City Council
[2007] EWCA Civ 610
[2007] Legal Action August 29, CA
The council owed the appellant the main homelessness duty in s193 Housing Act
1996. It made an offer of council accommodation. When that was refused, it said that
22
its duty had been discharged. The appellant took the point that the offer letter did not
include the words required by s193(7A) i.e. it did not state that it was "a final offer for
the purposes of subsection (7)". The Court of Appeal held that the precise rubric need
not be used provided that the offer letter actually conveyed the point that it was a final
offer of suitable accommodation. Alternatively, the offer could be construed as being
made under s193(5) and the failure to accept it had brought the duty to an end.
64. Complaint against Nottingham Council
LGO 05/C/02965
[2007] Legal Action June 37
On her homelessness application, a young single parent was given priority for an
urgent allocation of council accommodation. She was made a single offer of a house
from which the previous tenant had been evicted for failing to maintain the premises
and the garden. At the date of letting, the floors were soaked in urine, the walls
smeared with human faeces and the garden completely overgrown. The ward
councillor described the condition of the house as "stomach turning". The
complainant felt she had no option but to take it. Subsequently, the council's
contractor estimated £11,500 of works were needed. The Ombudsman was "appalled"
that anyone should be invited to view a house in this "dreadful condition".
Compensation of £2450 was recommended.
65. Ahmed v Leicester City Council
[2007] EWCA Civ 843
[2007] Legal Action September 18, CA
Ms Ahmed was a single mother of Somalian origin. She refused a Part 6 offer of
accommodation. The property had had its windows broken and rubbish thrown in the
garden. When Ms Ahmed viewed it, she had been chased away from the house by
three teenage who had shouted threats to burn the house down if she moved in. She
was told by another Somalian woman that there were problems with anti-social
behaviour and racial harassment in the area. The council decided that it had
discharged its duty by making the offer (s.193(7)). She submitted that even if the
council had been entitled to find, on an objective test, that the property was suitable, it
could only answer the further question “was it reasonable for the applicant to have
accepted it?” by reference to what she knew at the time ie a subjective assessment
was required (s.193(7F) and Slater v Lewisham LBC [2006] EWCA Civ 394, [2006]
HLR 3, CA). The Court of Appeal found that the reviewing officer had accepted what
the applicant had said about her experience, but the assessment of the reasonableness
of her acceptance of the offer was not to be measured by her state of mind alone.
Slater was not authority for a subjective-only approach. The officer had considered
thoroughly the extent of anti-social behaviour and racist incidents on the estate and
had applied (correctly) an objective test in deciding whether it would have been
reasonable for the applicant to have accepted the offer.
23
ALLOCATION OF SOCIAL HOUSING
PART 6 HOUSING ACT 1996
The allocation scheme and reasonable preference s.167
66. R (Aweys and others) v Birmingham CC
[2007] EWHC 52 (Admin)
[2007] HLR 27, Admin Ct
The claimants all applied to Birmingham as “homeless”. The council accepted
that it owed them the main duty (HA 1996 s193) because although the
claimants had accommodation it was not reasonable for them to continue to
occupy (HA 1996 s175 and s177).
The council told them to remain in their present homes until made an offer
under the council’s allocation scheme. It placed them in Band B of that
scheme (for homeless households not currently in temporary accommodation).
The council reserved the higher Band A for those homeless applicants it had
provided with temporary accommodation.
Allowing a claim for judicial review, Collins J held that the council’s handling
of the homelessness applications and of its allocation scheme were both
unlawful because:•
those in Band A had – because the council had secured it – “suitable”
accommodation. It was irrational to place them higher than the claimants who
were in accommodation the council considered unreasonable for continued
occupation;
•
in any event, those who had been required by the council to remain in
their present accommodation as “homeless at home” were in “temporary
accommodation” which being provided (in the widest sense) by the council.
As a result, they should have been in Band A.
These points were the subject of the appeal heard in 8 – 9 October 2007.
67. R (Lin) v Barnet LBC
[2007] EWCA Civ 132
[2007] HLR 30, CA
Barnet LBC had adopted a points-driven choice based letting scheme.
Properties were advertised and then let to the bidder with the highest points
eligible to bid for property of that size. Points were accorded for a variety of
matters, including 10 points for those who were being assisted as “homeless”.
The claimant had been owed the full homelessness duty for several years and
had been provided with a flat on a housing association assured shorthold
tenancy (under a private sector leasing –PSL - scheme). She had 340 points
but had not even reached the minimum threshold for points likely to result in a
successful bid for the two bedroomed property she needed.
In judicial review proceedings, she pursued a number of grounds of challenge
to the council’s scheme on the basis that it failed to accord a “reasonable
preference” to the statutorily homeless as required by HA 1996 s167(2)(a) and
(b).
Hughes J rejected most of the grounds but granted a declaration that the
scheme was unlawful in so far a it automatically accorded all transfer
24
applicants 100 additional points (including some applicants not entitled to a
reasonable preference under HA 1996 s167(2)). That aspect of the scheme had
the effect of artificially raising the points threshold to the detriment of those,
such as the claimant, entitled to a statutory preference.
The Court of Appeal granted leave to appeal and that appeal has been allowed
in part. While the majority of the grounds of appeal were rejected, the Court
decided that another unlawful aspect of the Scheme had been its failure to
spell out the “procedure” relating to the award of extra points when PSL
accommodation was being withdrawn.
68. R (Ahmad) v Newham LBC
[2007] EWHC 2332 (Admin)
[2007] Legal Action November p38
The claimant, his wife and their four children occupied four-bedroom
accommodation. Members of the household had a variety of physical and mental
health problems. The council accepted that the accommodation was overcrowded
(s.167(2)(c)) but a medical assessment concluded that there was not a medical need
for accommodation (s.167(2)(d)). The council's scheme provided for both choicebased lettings and direct offers. The claimant sought judicial review of both the
medical assessment and the terms of the allocation scheme. Nicholas Blake QC,
sitting as a Deputy High Court Judge, held that the medical assessment had been
flawed as insufficiently reasoned, the choice-based scheme was flawed as it did not
permit a composite assessment of the claimant's needs, and thus other applicants with
fewer needs could bid against the claimant for the same property, the existence of the
direct offer scheme did not save the scheme from failing to recognise reasonable
preference and the scheme defined “overcrowding” as limited to statutory
overcrowding, whereas s.167(2)(c) did not contain that limitation. The Court of
Appeal is to hear the appeal very shortly.
69. Complaint against Hounslow LBC
LGO 06/A/14890
[2007] Legal Action October p26
The Locata scheme has four bands (A – D). Advertised properties are let to the bidder
in the highest band. If there is more than one, bidders are prioritised by date order. As
applicants move up bands, they are given new priority dates (to avoid leapfrogging
those already in that band) but if moved down, resume their previous priority date.
The complainant had first applied for an allocation in 1999. In November 2005 she
had been moved up a band, because she was homeless. In December 2005, the council
had secured suitable temporary accommodation for her and she was moved down a
band. She did not resume her previous priority date of 1999. The council said that
homeless applicants were treated as having a new priority date from the date of their
homelessness application. That practice was not contained in the published allocation
scheme. Moreover, in the complainant’s case, the council records wrongly showed her
as having a priority date from April 2006 (eventually corrected in June 2007). A
sampling exercise showed that 15 out of 20 homeless applicants had also been given
the wrong priority dates. The LGO found maladministration in that the council had
not corrected recorded the complainant’s priority date until June 2007, had adopted
and operated a practice which was not part of its published scheme and had to
recognise earlier a need to change the practice or amend the scheme. £500
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compensation was recommended and the LGO cautioned that if the allocation scheme
was amended to reflect the practice (rather than ending the practice), issues may arise
about whether the scheme gave homeless applicants the appropriate reasonable
preference. All other authorities operating the Locata scheme were sent copies.
70. Complaint against Havering LBC
LGO 06/A/10428 31 October 2007
[2007] Legal Action December (forthcoming)
A council tenant applied for a transfer in 2000. She lived with her elderly mother. The
accommodation was up three flights of stairs and had internal stairs. The mother was
aged 86, had asthma, bronchitis, arthritis in all major joints, and was deaf and partially
sighted. The family needed ground floor accommodation (but not a garden). Most
ground floor accommodation constituted properties with gardens and the council's
allocation policy provided that properties with gardens should be let to families with
children or to applicants with proven medical need for use of a garden. At a home
visit in 2003, a council officer reported that the mother was “practically a prisoner in
her own home”. Despite the involvement of the MP, no transfer offer was made and
the application was not placed in the highest priority band for the choice-based
lettings scheme until November 2006. The council told the tenant that she could keep
bidding for level access properties but that her bids would never be successful, even
though she had the highest possible banding. The council's initial response to the
complaint was to offer the complainant £250 compensation for not returning her
telephone calls. By the time the LGO had completed his investigation, the mother had
died. The LGO found that the council had failed to consider any flexibility in hits
policy by the exercise of discretion. No consideration was given to the special
circumstances of the tenant's mother or to her Article 8 rights. Although the council
had known that the mother was effectively confined to the home (and indeed
restricted to parts of it), that “tragic, deplorable and wholly preventable
circumstance” had not been addressed. The LGO found that the family had suffered
injustice for five years, that the impact on the mother and the family “must have been
terrible” and that the mother's quality of life had been severely affected. £10,000
compensation was recommended.
71. Complaint against Ealing LBC
LGO 06/A/11660, 22 October 2007
[2007] Legal Action December (forthcoming)
The council's scheme (Locata) provided that before an allocation could be made, an
applicant had to provide proof of residence for the past 10 years, which would need to
have been verified. The complainant had reached the top of the bid-list but allocation
was refused in the absence of verification. The LGO found that the council had acted
wrongly in not advising the complainant, who had applied for housing in 2001, of the
need to have her application verified when she first applied and what this would
entail. When she became entitled to an allocation but had not supplied verified details,
the council also failed to give sufficient consideration to her personal circumstances
and the difficulty she might legitimately have in providing the proof requested. Had
she been told what was required at the start, it would have been reasonable to assume
that she would have been able to comply with the council's requirements when she
was number on the shortlist for a property for which she had placed a bid. She
therefore missed securing permanent accommodation as a result of the council's
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failing. The LGO recommended that the council should increase her priority until she
was able to secure permanent accommodation, pay her £750 compensation for the
time she has spent living in insecure accommodation since November 2006, pay her
£250 compensation for her time and trouble in pursuing her complaint, send her a
written apology and review the process for verifying applications for housing
including the need to provide proof of residence for 10 years and the way discretion is
exercised over those who are unable to provide the necessary proof.
Choice-based lettings: new Code of Guidance?
72. The ODPM letter accompanying the original Allocation Code for England (11 November
2002) promised “more detailed guidance on balancing need and choice” to be issued
“towards the end of next year”. But there is still no such guidance.
73. On 15 January 2007 the Government issued a consultation draft of a new statutory
amendment to the Code of Guidance on allocation of social housing by way of ChoiceBased Lettings. The final guidance will be issued under Housing Act 1996 s169.
Responses were sought by 10 April 2007. Nothing has yet materialised.
Liz Davies
Garden Court Chambers
9 November 2007
i
ii
iii
[2002] ECR I-7070, ECJ
“To no one will we sell, to no one will we deny or delay, right or justice”.
[2001] UKHL57, [2002] 1 AC 547, HL
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