HOUSING LAW
PRACTITIONERS’
ASSOCIATION
HOMELESSNESS
AND
ALLOCATION
Legislative and case-law update
1November 2006 –9 November 2007
Liz Davies
Garden Court Chambers
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 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 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.
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 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 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