Out of borough placements

The Court of Appeal recently rejected a challenge by a homeless mother to a London borough's offer of temporary accommodation near Milton Keynes. Ian Peacock explains why.

When a local housing authority is under a duty under Part 7 of the Housing Act 1996 to secure accommodation for an applicant, section 208 requires the authority to secure accommodation in its own district so far as reasonably practicable. Statutory guidance provides that, where it is not possible for an authority to secure accommodation within its own district, accommodation is not likely to be suitable where suitable and affordable accommodation closer to the authority's district is available unless the authority has a justifiable reason.

Many local housing authorities, particularly in London, have found it difficult to obtain sufficient accommodation in their own districts and have placed applicants in accommodation outside their districts. The Department for Communities and Local Government's most recent statistical release indicates that at the end of June 2014 59,710 households in England had been placed by local authorities in temporary accommodation. Of those 14,220 were outside the authorities' own districts with the majority of those (13,280 households) being placed by London authorities.

The Court of Appeal decision in Nzolameso v City of Westminster [2014] EWCA Civ 1383 concerned the scope of the obligation to secure accommodation in an authority's own district so far as reasonably practicable and the circumstances in which an authority could secure accommodation outside its own district.

The facts of the case

The appellant, Ms Nzolameso, and her five children had been in private sector accommodation in Westminster but had lost that accommodation due to a reduction in her housing benefit. She had applied to the respondent, the City of Westminster, as homeless and the respondent had accepted that it owed her the main housing duty. It offered her temporary accommodation in the form of a five bedroom house in Bletchley, near Milton Keynes. The appellant refused that offer on the basis that the accommodation was too far from the friends on whom she relied for emotional and practical support and from her children's schools. As a result of her refusal of the offer the respondent decided that its duty to her had come to an end.

The appellant requested a review of the respondent's decisions that the accommodation in Bletchley was suitable for her and that its duty to her had come to an end. The review upheld both decisions. An appeal against the review decision was dismissed in the County Court and the appellant appealed to the Court of Appeal.

The court's decision

The appellant argued that the respondent had been required to offer her any suitable accommodation which was available in Westminster or, if no such accommodation was available, the nearest suitable accommodation outside its own district. She argued that the respondent had been obliged to consider not only the accommodation available within its own stock but also accommodation available to it from other sources including the open market. If accommodation had not been available in Westminster, the respondent had been required to search for accommodation in the districts of neighbouring authorities in an ever widening circle in order to find accommodation from any source that might be suitable.

Those arguments were rejected. The court held that the appellant's approach would impose an unreasonable and disproportionate burden on authorities, which do not have the human or financial resources to undertake a search of the kind proposed for every applicant.

The court went on to hold that what is reasonably practicable in any given case is a matter for the local housing authority to decide, provided that its decision is not Wednesbury unreasonable. In deciding what is reasonably practicable the authority is entitled to have regard to all the factors that have a bearing on its ability to provide accommodation to the person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature.

Although there is no express right for an applicant to request a review of whether an authority has complied with section 208, there is a right to request a review of the suitability of accommodation and whether the authority has complied with section 208 is likely to have a bearing on whether accommodation outside the authority's district is suitable.

The court emphasised that it should be astute to ensure that authorities do not merely apply policies which lead to accommodation being provided outside their own districts in a routine and unthinking manner. However, the court also recognised that many authorities are under great pressure and should not be prevented from making sensible use in an orderly way of the housing stock available to them, whether within or outside their own districts.

The court rejected criticisms of the respondent's review decision, which had explained in general terms why it had not been reasonably practicable to secure accommodation for the appellant in the respondent's own district. The court held that reviewing officers are to be taken to be aware of the resources available to the authority and the pressures on them and do not need to describe in detail what those resources and pressures are.

Conclusion

If the appellant's arguments on the appeal had been accepted, it would have created a significant additional burden on authorities in terms of both their human and financial resources. When placing an applicant in accommodation, an authority would have been unable to rely solely on a stock of temporary accommodation. If accommodation from the authority's stock in its own district was not available for the applicant, the authority would have been required to carry out a bespoke search for accommodation for the applicant. The authority might also have been required to secure accommodation for the applicant even if the accommodation would only have been affordable with the authority subsidising the rent.

It would also have been more difficult for authorities to manage their stock. The appellant's argument that an applicant had to be offered any available accommodation in the authority's district would have meant that an authority could not offer accommodation outside its district to an applicant with few links to the district whilst keeping accommodation in its district available for a future applicant with greater links.

Local housing authorities are likely to welcome the Court of Appeal's decision as giving them flexibility in deciding how to meet the obligation to secure accommodation within their own districts so far as reasonably practicable.

Ian Peacock, instructed by Kelly Donovan at Westminster Legal Services, appeared for the respondent. A barrister at New Square Chambers, Ian specialises in property litigation and public law. He is an expert in homelessness and allocations law, regularly appearing in the County Court, the Administrative Court and the Court of Appeal. He is recognised as a leading junior in social housing in the Legal 500.