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Supreme Court gives reasons for quashing offer of housing 50 miles away

The Supreme Court has today given its reasons why it unanimously upheld a homeless mother of five’s appeal over a London borough's offer of accommodation 50 miles away.

The court last month quashed a decision by the local housing authority (Westminster City Council) that it had properly discharged its duty to secure accommodation available for occupation by the appellant.

The judges made their decision known immediately, given the need for arrangements to be made for the family involved.

The Supreme Court’s judgment has now been published in Nzolameso v City of Westminster [2015] UKSC 22.

The appellant had been evicted in 2012 from her privately rented home after the introduction of the ‘benefit cap’ meant she was unable to pay the rent.

Westminster accepted that she was unintentionally homeless and that it owed a duty to provide her with suitable accommodation.

It offered her a house in Bletchley near Milton Keynes, with what was described as a “brief explanation" of why it was not reasonably practicable to offer her a home in Westminster and why the house was suitable for her.

The appellant’s children were between 8 and 14 and the council concluded that it was suitable for them to move schools (as none were of GCSE age).

Ms Nzolameso refused the accommodation. Westminster therefore decided that it had discharged its duty to her.

The appellant lost a review and then her appeals to the County Court and the Court of Appeal.

In the only one delivered by the Supreme Court, Lady Hale noted that under section 208(1) Housing Act 1996 (‘the 1996 Act’) local authorities have a statutory duty to provide accommodation in their own area ‘so far as reasonably practicable’.

She explained that ‘reasonable practicability’ imported a stronger duty than simply being reasonable.

“But if it is not reasonably practicable to accommodate ‘in borough’, they must generally, and where possible, try to place the household as close as possible to where they were previously living,” Lady Hale said.

“There will be some cases where this does not apply, for example where there are clear benefits in placing the applicant outside the district, because of domestic violence or to break links with negative influences within the district, and others where the applicant does not mind where she goes or actively wants to move out of the area.”

The judge added that the combined effect of the Homelessness (Suitability of Accommodation) (England) Order 2012 (‘the 2012 Order’) and the Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 changed the legal landscape as it was when previous cases dealing with an ‘out of borough’ placement policy, such as R (Yumsak) v Enfield London Borough Council [2002] EWHC 280 (Admin), [2003] HLR 1, and R (Calgin) v Enfield London Borough Council [2005] EWHC 1716 (Admin), [2006] HLR 58, were decided.

The 2012 Order sets out that while out of borough placements are not prohibited, authorities are required to take into account the distance of the accommodation being offered from its district and the disruption to caring responsibilities or the education of any member of the household.

The obligation to secure accommodation as close as possible to where the household had previously been living was then strengthened by the Supplementary Guidance, including the need to seek to retain established links with schools, doctors, social workers and other key services and support.

Lady Hale said that as an aspect of the suitability of the accommodation being offered, a decision to place an applicant out of borough fell within the grounds on which a review could be sought under section 202 of the 1996 Act.

The judge highlighted how the exercise of the local authority’s functions under the 1996 Act was subject to section 11(2) of the Children Act 2004, which required it to have regard to the need to safeguard and promote the welfare of children.

“The welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological, social, educational and economic welfare,” she added.

It had also been held that the section 11(2) duty applied not only to the formulation of general policies and practices, but also to their application in an individual case.

Lady Hale said the question of whether the accommodation was “suitable” for the applicant and each member of her household “clearly” required the local authority to have regard to the need to safeguard and promote the welfare of any children in her household.

“In my view, it is not enough for the decision-maker simply to ask whether any of the children are approaching GCSE or other externally assessed examinations,” she continued. “Disruption to their education and other support networks may be actively harmful to their social and educational development, but the authority also have to have regard to the need to promote, as well as to safeguard, their welfare.

“The decision maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision.”

Lady Hale noted, however, that section 11 did not in terms require that the children’s welfare should be the paramount or even a primary consideration.

The judge said it was also the case that there would almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed.

“Such households must, by definition, be in priority need, and most households are in priority need because they include minor children,” she said.

“The local authority may have the invidious task of choosing which household with children is to be offered a particular unit of accommodation. This does not absolve the authority from having regard to the need to safeguard and promote the welfare of each individual child in each individual household, but it does point towards the need to explain the choices made, preferably by reference to published policies setting out how this will be done.”

Lady Hale noted the intervention of the Secretary of State for Communities and Local Government, who emphasised the duties on local authorities to evidence and explain their decisions.

She added that it must be clear from the decision that proper consideration had been given to the relevant matters required by the 1996 Act and the accompanying Code. “While the court should not adopt an overly technical or ‘nit-picking’ approach to the reasons given in the decision, these do have to be adequate to fulfil their basic function.”

The Secretary of State had complained that the Court of Appeal had been too ready to assume that the authority had properly complied with its statutory obligations.

The judge noted that the Secretary of State’s further complaint that the effect of the Court of Appeal’s approach “would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the Code and Guidance and had taken it into account; that the authority had considered and rejected the possibility of providing closer accommodation than that offered; and that the authority had good reasons for their decision in this particular case.

“If the courts were prepared to assume all this in the authority’s favour, this would immunise from judicial scrutiny the ‘automatic’ decisions to house people far from their home district, which was just what the 2012 Order and Supplementary Guidance were designed to prevent.”

Counsel for Westminster had valiantly tried to defend the decision letter but it was apparent that the council’s decision had suffered from all these defects, Lady Hale said.

“There is little to suggest that serious consideration was given to the authority’s obligations before the decision was taken to offer the property in Bletchley,” she found. “At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area.

“Nor were any inquiries made to see whether school places would be available in Bletchley and what the appellant’s particular medical conditions required. Those inquiries were only made after the decision had been taken.”

Lady Hale concluded that the review decision was based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster.

“There was no indication of the accommodation available in Westminster and why that had not been offered to her,” the judge said. “There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible.”

Lady Hale said it followed that Westminster could not show that their offer of the property in Bletchley was sufficient to discharge its legal obligations towards the appellant under the 1996 Act. “Moreover, [the council’s] notification to the appellant that their duty towards her had come to an end was purportedly given in circumstances where she did not know, and had no means of knowing, what, if any, consideration had been given to providing accommodation in or nearer to the borough, apart from the general standard paragraph in the letter offering her the Bletchley accommodation the previous day.”

The judge added that the council also could not show that it had properly discharged its obligation under section 11 of the Children Act 2004.

“The appeal must be allowed and the decision that their duty to secure that accommodation was made available to her had come to an end must be quashed,” she said.

Lady Hale said that “ideally” each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year. “That policy should, of course, reflect the authority’s statutory obligations under both the 1996 Act and the Children Act 2004. It should be approved by the democratically accountable members of the council and, ideally, it should be made publicly available.”

The judge also said each local authority should have, and keep up to date, a policy for allocating those units to individual homeless households. “Where there was an anticipated shortfall of 'in borough' units, that policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. That policy too should be made publicly available.”

Lady Hale argued that this approach would have many advantages. It would enable:

  • homeless people, and the local agencies which advised them, to understand what to expect and what factors would be relevant to the decision;
  • temporary letting teams to know how they should go about their business;
  • reviewing officers to review the decisions made in individual cases by reference to those published policies and how they were applied in the particular case;
  • reviewing officers to explain whether or not the individual decision met the authorities’ obligations;
  • applicants to challenge, not only the lawfulness of the individual decision, but also the lawfulness of the policies themselves;
  • a general challenge to those policies to be brought by way of judicial review. “In some ways this might be preferable to a challenge by way of an individual appeal to a county court. But it may not always be practicable to mount a judicial review of an authority’s policy, and an individual must be able to rely upon any point of law arising from the decision under appeal, including the legality of the policy which has been applied in her case.”

“No doubt there are other ways in which an authority could ensure that their decisions are properly evidenced and properly explained,” Lady Hale said. “But a standard paragraph of the sort that was used in this case is not one of them.”

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