High Court judge orders council to secure suitable accommodation for claimant

February 25, 2020

A High Court judge has taken the “relatively unusual” step of issuing a mandatory order giving a London borough 12 weeks to secure that suitable accommodation is available to a claimant and his family.

In M, R (On the Application Of) v London Borough of Newham [2020] EWHC 327 the claimant, M, alleged that the council was in breach of its duty under section 193(2) of the Housing Act 1996.

M lives with his wife and four dependent children, one of whom (A) has various conditions and disabilities which impact on the sort of accommodation the family requires.

In January 2005 Newham accepted it owed the claimant the duty set out in the 1996 Act. For 13 years M and his family lived in temporary accommodation in a three-bedroomed house.

The judge, Mr Justice Linden, said it appeared that M and his family could get by in the accommodation whilst A was a young child but the difficulties increased as she got older. By the end of 2017, M and his wife considered that the family urgently needed to move.

In December 2017 Newham notified the claimant that alternative temporary accommodation in a four-bedroomed house had been secured for the family.

However, M did not agree that the alternative accommodation was suitable. In light of the consequences if he were to refuse the offer, the claimant and his family moved into the accommodation whilst exercising their right to request a review of the council’s decision.

That request was supported by a letter from a civil legal advice housing adviser at Shelter, which outlined A’s disabilities and the deficiencies in the alternative accommodation.

In February 2018 Newham notified M that following a medical assessment of A it had awarded him emergency status and the family was now registered on the council’s emergency housing list in relation to the allocation of permanent accommodation pursuant to Part VI of the 1996 Act. The letter recognised that the property required adaptations which could not be carried out or could be carried out but not within reasonable cost.

On 27 February 2018 the claimant and his wife were notified of the decision of the council’s review officer in relation to their request for a review. The officer concluded in his letter “that the temporary accommodation provided to you under the Housing Act 1996 is not suitable due to your daughter’s need for a property that can accommodate bariatric bathroom facilities to meet her disability requirements”.

Despite this, at the time of the hearing before Mr Justice Linden, “more than two years after the claimant and his family had moved in”, they still lived at the alternative arrangement.

In the meantime further evidence was submitted to the council from the Paediatric and Surgery and Stoma Care department at a hospital and A’s GP setting out the urgent need for A to move to adapted accommodation to prevent deterioration in her health conditions.

The claimant’s case in the High Court was that Newham had been in continuing breach of its statutory duty to M, effectively by its own admission (in the letter of 27 February). In the alternative, if the defendant was not strictly bound by its own admission, that letter, combined with the other evidence in the case, demonstrated that the defendant was in breach of its section 193(2) duty.

Newham denied it was in breach of statutory duty. Its counsel argued that the local authority had discharged its obligations in that the claimant’s current accommodation was “suitable” accommodation, at least for the time being.

The council contended that whether or not accommodation should be regarded as "suitable" was a public law question. Counsel submitted that the passage of time was not sufficient to render suitable accommodation unsuitable – there had to be a deterioration in the circumstance of the applicant's accommodation - and, in any event, the point had not yet been reached at which the court was entitled to say that the current accommodation was not suitable in the relevant sense.

Counsel for Newham also emphasised the limited resources of the defendant and the shortage of available housing stock. He relied on the steps which he said the defendant had taken to make alternative accommodation available to the claimant. He argued that the claimant himself had not taken sufficient steps to bid for accommodation and he relied on delay as a basis for dismissing the claim. He also argued that, as a matter of discretion, the judge should refuse to make a mandatory order.

Mr Justice Linden said the central legal issue between the parties was as to the approach to determining whether a local housing authority is in breach of section 193(2) in circumstances where it accepts that it owes the applicant the relevant duty but has not yet made accommodation available to him.

“Where the applicant has accommodation at the time of the application to the housing authority, and the duty is accepted by the authority as having arisen, it is implicit that the accommodation occupied by the applicant is not such as "it would be reasonable for him to continue to occupy" for the purposes of section 175 (3), given that it is on this basis that he is "homeless".

i) Does it follow from this that the housing authority which leaves the applicant in his existing accommodation, even for a short period, is necessarily in breach of statutory duty because the applicant's existing accommodation cannot be regarded as "suitable" within the meaning of section 206 of the 1996 Act?

ii) If this does follow, is the authority automatically in breach of statutory duty or does it have a reasonable time in which to secure suitable accommodation?

iii) On either view, how should the question of relief be approached?”

Mr Justice Linden said that “given what are arguably areas of uncertainty arising from the authorities…as they apply to his case”, he had reached his decision on alternative bases:

He accepted counsel for the claimant’s submission that Newham had, by its letter of 27 February 2018, admitted breach of section 193(2) so that the only issue was relief. “The key point here is that Mr Ohene was the defendant’s appointed Reviews Officer. The context in which he was writing was that the question of homelessness was no longer in issue: the issue was to the suitability or otherwise of the current accommodation…..He must be taken to have used his words advisedly when he said: “I have concluded that the temporary accommodation provided to you under the Housing Act 1996 is not suitable…”. The judge therefore rejected Newham’s submission should be read as a decision by the council that M’s current accommodation was suitable accommodation for the time being, with which decision the judge could only interfere on public law grounds. “Had this been Mr Ohene’s decision he would have said so, particularly given that the Birmingham City Council [Ali & Others v Birmingham City Council] case clearly permitted such an approach at least in principle.”
He preferred the approach of Collins J in ex parte Begum and of the Court of Appeal in the Birmingham City Council case “at least insofar as they held or implied that, once it is accepted or established that the accommodation currently occupied by the applicant is not suitable, the housing authority which owes the applicant a section 193(2) duty will be in breach of that duty”.
In case he was wrong in his analysis, he also considered whether a reasonable time for the council to make suitable alternative accommodation available to the claimant had now expired. He did so in the context of the question whether the existing accommodation remained suitable, as the ratio of the Birmingham City Council case suggested he should, but he also considered the question of reasonableness more generally in accordance with the description of the duty in Codona. He considered that the defendant failed whichever approach was adopted.
The difficulties for A and her family which were caused by her current accommodation significantly undermined her health and well-being, her dignity and ability to lead a reasonably independent life at home. The evidence was that these issues needed to be addressed as a matter of urgency. The judge said he was satisfied that the point had been reached where the conditions were “intolerable” and “enough is enough”. Even if the council’s decision of 27 February 2018 was not fatal to its case at that point, it was powerful additional evidence that the time had passed during which the current accommodation could be regarded as suitable for the claimant and his family. The defendant’s position as at 22 February was that A’s needs warranted an award of “emergency status”.
The steps taken by a housing authority in this type of case were relevant to the question of whether suitable accommodation had been made available within a reasonable time. A housing authority which has taken all reasonable steps will also be in a good position to prove, if that is the case, that it has not been possible to locate suitable accommodation and to argue that a mandatory order would require it to do the impossible. However, “an examination of the evidence about the efforts which have been made by the defendant in relation to the claimant and his family suggests that no real coherent thought has been given to their situation and that very little has been done to assist them.”
Even before considering the steps taken, the council’s own evidential position “was and is that the current accommodation was and is unsuitable and no suitable alternative accommodation has been identified by it or offered to the claimant.” There therefore did not appear to the judge to be any decision of the defendant, whether express or implied, which it was able to defend on the basis that he might only interfere on public law grounds as suggested at paragraph 50 of the opinion of Baroness Hale in the Birmingham City Council case.
He appreciated that affordable housing which met A's needs might not be in abundant supply, that the defendant had limited resources, and that there would be higher priority applicants, as the defendant's policies indicate. “But…. there is a difference between stating these generalities in a policy and proving that, notwithstanding reasonable steps having been taken to secure suitable alternative accommodation in a particular case, this is not proved possible in a period of two years and will not be in the near future.”

On the issue of relief, Mr Justice Linden rejected Newham’s submission that he should refuse a mandatory order on the grounds of delay.

In considering whether to make a mandatory order, the judge said he regarded the deficiencies in the current accommodation as serious in terms of their nature and effect “as, apparently, did the defendant at least in February 2018”.

He also considered that the defendant had been in breach of statutory duty for a considerable time, particularly having regard to the needs of A and her family. “I have found the evidence as to the defendant's efforts to find suitable accommodation unsatisfactory to the point at which it does not appear to be taking the claimant's case seriously. Nor am I satisfied on the evidence that it is unreasonable to expect greater efforts or that it is impossible or unreasonably difficult to find suitable alternative accommodation for the claimant. Nor has any suggestion been made that the defendant will redouble its efforts and/or that suitable accommodation will be made available to the claimant in the near future.”

In the light of these considerations and the evidence as a whole, Mr Justice Linden was not satisfied that he should merely make a declaration that the defendant was in breach of statutory duty. “The short-lived efforts that were made in May 2019 when judicial review was threatened and in December 2019 after proceedings were issued suggest to me that a mere declaration will not lead to a sustained and thoughtful effort to assist the claimant and his family.”

He therefore made a mandatory order which gave Newham 12 weeks to secure that suitable accommodation was available to the claimant in accordance with section 193(2) of the Housing Act 1996.