Once upon a time local councils could offer homeless people damp, mice-infested 28th-story flats on sink estates to discharge their responsibilities under the Housing Act 1996. Now they simply threaten to send them to Milton Keynes. But one cannot help thinking the UK Supreme Court has left the policy of “out-of-borough” placements (or “social cleansing” as even Boris Johnson acknowledged it to be) in disarray. The ruling in Nzolameso v City of Westminster means it will be very difficult for local authorities to justify sending people in housing need very far away for accommodation.
The legislation is pretty clear and explained in this 2006 Homelessness Code of Guidance: “Housing authorities must ensure that suitable accommodation is available for people who have priority need, if they are eligible for assistance and unintentionally homeless.” As a single mother of five children who was HIV positive and suffered other health issues, Titina Nzolameso was accepted by Westminster Council as being in priority need. The Council therefore had a duty to house her (known as the “main homelessness duty”). Whether shipping her out to a house in Bletchley, in Milton Keynes, was suitable is another matter. Nevertheless officials felt able to write to her:
“There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.”
She turned the accommodation down as being too far from people helping her with her children and because she wanted to stay with her GP, also because it would mean changing her children’s schools and she had lived in Westminster for a long time. From December 2008 to November 2012, the family had lived in a privately rented four bedroom house in Westminster – until a cap on housing benefit kicked in and she was kicked out, unable to afford the rent. Under the local housing allowance system rates of housing benefit for private tenants are calculated for each locality. The Westminster limit fell well below Nzolameso’s rent.
As she was vulnerable and not intentionally homeless, she was deemed in priority need (see below) and her housing became the responsibility of the local council. Westminster insisted the five-bedroomed Bletchley house offered as temporary accommodation was suitable and because she had refused the offer, told her their duty under Section 193 of the Act had ended. They were no longer required to provide her with accommodation.
An appeal was unsuccessful and the Council told her: “Given the shortage of housing in Westminster and all of your circumstances … I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.”
About half of Westminster’s temporary accommodation is “out of borough”. In 2012 the council reported that the housing allowance cap, based on the cheapest 30% of properties in an area, was increasing homelessness as benefits failed to meet private rents, imposing increasing pressure on the council through its housing duty. Court appeals followed and because Westminster refused to offer interim accommodation during this time, Ms Nzolameso was forced to put her children into care.
Section 208(1) of the Housing Act provides that: “So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district”.
The Homelessness Code of Guidance says: “Housing authorities should, therefore, aim to secure accommodation within their own district wherever possible, except where there are clear benefits for the applicant of being accommodated outside of the district.” It gives the possibility of domestic or other violence locally as an example of a reason to accommodate someone elsewhere. As to suitability, the guidance notes that “account will need to be taken of their need to reach their normal workplace from the accommodation secured”; children’s education is a factor and “wherever possible, secure accommodation that is as close as possible to where they were previously living”. The Coalition Government has sought to strengthen safeguards for people seeking accommodation and noted in 2012:
“The Government has made it clear that it is neither acceptable nor fair for local authorities to place households many miles away from their previous home where it is avoidable. Given the vulnerability of this group it is essential that local authorities take into account the potential disruption such a move could have on the household.” (Consultation response)
An order issued in 2012 (see below) on how local authorities should assess suitability sets out criteria to be considered, among them distance, disruption regarding work or education, proximity to medical facilities and other support. The guidance “does not prevent or prohibit out of borough placements where they are unavoidable nor where they are the choice of the applicant”. Lady Hale in her Supreme Court judgment therefore said “‘Reasonable practicability’ [as per the wording of the Act] imports 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.”
Hale insisted that the council had a positive duty to promote the welfare of the children and their education (see Section 11 of the Children Act 2004). “The question of whether the accommodation offered is ‘suitable’ for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally.” (Para 27)
The legislation is strengthened by being interpreted in the light of Article 3(1) of the United Nations Convention on the Rights of the Child which says: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
The Council had said the children weren’t “currently sitting national exams and could … move schools without their education suffering”. But Hale said: “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 Council can’t tick off a set of negatives but must instead decide on the positive welfare of the children. It must identify those needs and make a decision accordingly.
Remarkably in this case, the Secretary of State for Communities, Eric Pickles, intervened (in the sense of offering a view to the court on the issues) to underline that local authorities have a duty to look at the guidance issued by the Government and engage with it – explaining how they come to their decisions in the light of the guidance. It was not “sufficient for the reviewing officer to describe the circumstances which led her to that conclusion in general terms” (as the Court of Appeal had said in ruling in favour of Westminster –  EWCA Civ 1383). Courts need to know more than that the Council officials knew of the guidance and took it into account. Hale notes that in fact there was little information on which the Council’s temporary lettings team made its decision, based 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. The review decision is 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. 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.” (Para 39)
Councils can take account of local shortages in making their decisions – but they should also be anticipating demand and procuring sufficient units to meet it. Where there is a shortfall councils should have publicly available policies showing how they allocate within the borough and how they allocate outside the borough. Such policies could be judicially reviewable; in other words they will be open to a court assessment of their reasonableness or the rationality of actions taken under those policies.
Hale concluded: “It follows that the authority cannot show that their offer of the property in Bletchley was sufficient to discharge their legal obligations towards the appellant under the 1996 Act … I would add that they also cannot show that they have properly discharged their obligation under section 11 of the Children Act 2004.”
There are two burning issues highlighted by this case. That of “social cleansing” – the moral but also practical issue of sending the poor and vulnerable out of London; and that of the effect on homelessness of restrictions on housing benefit, including the “local housing allowance” and the new benefit cap. The local housing allowance is calculated on various factors for each area (Broad Rental Market Areas). For Westminster the BRMA is currently £417 a week for a four bedroomed house. The global benefit cap, which restricts this and certain other benefits to a total of £500, makes it inevitable that people on benefit in London will be evicted from private accommodation for failure to pay rent. Westminster acknowledged this – but failed to have a policy to deal with it that would avoid sending people out of borough where it was not in their interests. (Ms Nzolameso‘s case predates the more general imposition of a £500 a week benefit cap that now affects people in her position – single mothers receiving benefits living with their children.)
Hale notes: “It is also the case that there will almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed.” This is because “vulnerability” (subject to a forthcoming judgment on the issue) is very narrowly defined with most acceptances based on children being part of the homeless family. (Basically the definition of priority need, meaning those owed the housing duty, comprises pregnancy, family with children, old age or mental health and emergency plus some categories of vulnerability). So the Supreme Court’s judgment gives local housing authorities very little leeway to turn those in priority need away any more – certainly not because the applicant may have turned down accommodation 50 miles away.
From now on local authorities must show what they have done to meet their housing obligations, not why they feel they don’t have to do anything.
On benefit cuts creating homelessness: Zahawi’s false assurance;
And: Iain Duncan Smith needs to put on a new benefits thinking cap
Nearly Legal has a post on Nzolameso here. It notes: “The least that can be said is that any decision letter containing little more than Westminster City Council’s present standard wording is unlikely to pass muster with the courts.”
2012 Suitability of Accommodation order – Order 2012 (SI 2012/2601 – provides:
“In determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including –
(b) the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household;
(c) the proximity and accessibility of the accommodation to medical facilities and other support which – (i) are currently used by or provided to the person or members of the person’s household; and (ii) are essential to the well-being of the person or members of the person’s household; and
(d) the proximity and accessibility of the accommodation to local services, amenities and transport.”
The ‘priority need groups’ include households with dependent children or a pregnant woman and people who are vulnerable in some way e.g. because of mental illness or physical disability. In 2002 an Order made under the 1996 Act extended the priority need categories to include applicants:
- aged 16 or 17
- aged 18 to 20 who were previously in care
- vulnerable as a result of time spent in care, in custody, or in HM Forces
- vulnerable as a result of having to flee their home because of violence or the threat of violence. Source: Government homelessness data