The Supreme Court has ruled unanimously that controversial out-of-borough housing placements for homeless persons may be unlawful where decision makers fail to follow statutory provisions and policy guidance.
Before the Easter recess the Supreme Court gave judgment in a case that has major implications for local housing authorities and those affected by their decisions. Nzolameso v City of Westminster [2015] UKSC 22 concerned the practice, labelled ‘social cleansing‘ by The Independent, of offering out-of-borough accommodation to homeless persons, which is increasingly located many miles away from the local authority’s district and the homeless person’s previous home.
At issue was the scope of the duty on local authorities to secure ‘suitable’ accommodation in their districts for homeless persons ‘so far as reasonably practicable’, as contained in sections 206(1) and 208(1) of Part 7 of the Housing Act 1996 (‘HA 1996’). The judgment turned on well-established principles of public law.
The facts
Ms Nzolameso was a single mother of five children suffering from a variety of serious health problems. Her rent had become unaffordable as a result of the housing benefit cap. The local authority accepted that they owed her the main homelessness duty under section 193 HA 1996 and the family was temporarily housed in a hotel on a bed & breakfast basis.
The local authority then offered her what they considered to be ‘suitable’ temporary accommodation in a 5-bedroomed house in Milton Keynes. In doing so, they believed that they had discharged their section 193 duty to her. Ms Nzolameso disagreed. She did not wish to uproot her family, change her children’s schools and re-settle many miles away from the borough they knew as home.
The effect of her rejection was to end the duty under section 193(2) HA 1996, pursuant to section 193(5). Ms Nzolameso challenged the decision via the internal review procedure governed by section 202 HA 1996. When this was refused, she appealed to the County Court. The first instance Judge dismissed the appeal and found that despite the brevity of the decision letter the local authority must have considered all the available housing stock and allocated the most suitable home to Ms Nzolameso (despite it being located in Milton Keynes). The decision was upheld by the Court of Appeal for the same reasons.
By the time Ms Nzolameso’s case reached the Supreme Court, the City of Westminster had ceased to provide her with temporary accommodation. As a result, her children were split between three different foster families and care proceedings commenced.
Location, location, location
Lady Hale, with whom the four other Lords agreed, considered first the statutory framework as elaborated by the Homelessness Code of Guidance for Local Authorities (2006). Central government had strongly condemned the practice of local authorities placing families many miles away from their previous homes if it could be avoided. The Homelessness (Suitability of Accommodation) (England) Order 2012 was intended to remedy this by requiring the authority to consider location in determining whether accommodation was suitable. This included consideration of the distance from the district, any significant disruption to the person’s household and proximity to various services. Supplementary guidance emphasised that local authorities should try and secure accommodation as close as possible to the applicant’s original home.
Also relevant was section 11(2) of the Children Act 2004 (‘CA 2004’), which imposes a duty on local authorities to safeguard and promote the welfare of children. Lady Hale clarified (at paragraph 27) that this duty is engaged when the authority is assessing suitability under section 206(1) HA 1996 because it was a statutory question that involved the exercise of discretion or evaluation. The Court left open the ‘interesting question’ of whether the duty may be stronger where Convention rights (and by extension the UN Convention on the Rights of the Child) were engaged.
The decision letter and subsequent review were defective when measured against the legal and policy framework. The decision on suitability was taken on very limited information and the letter reproduced standard text. There was no adequate explanation of the factors taken into consideration and no evidence that the authority considered the factors in the 2012 Order or the best interests of Ms Nzolameso’s children.
Comment:
The Court was distinctly unimpressed at the quality of the City of Westminster’s decision-making and its lack of transparency. Should local housing authorities acting under section 206 and 208 of HA 1996 fail to take into account all the relevant statutory and policy factors, or fail to adequately explain their reasoning, they can expect their decisions to be quashed on appeal.
Lady Hale’s guidance on the operation of the safeguarding duty in the Children Act 2004 could grant a new lease of life to this under-utilised provision. This significant piece of legislation does not appear to have been raised at the first instance or Court of Appeal, reflecting the fact that housing law can be somewhat hermetic. What Nzolameso demonstrates with some force is that the well-developed learning on the best interests of children in family and immigration law is readily transferrable to the housing context and can enrich the repertoires of practitioners and judges alike.
This post appears in the latest 36 Bedford Row newsletter. 36 Property is part of an interdisciplinary set with extensive experience in the way housing interacts with family and immigration law. David Ball, of 36 Property, was recently awarded interim relief on behalf of a Claimant under Nzolameso principles. Please contact us if you would like to discuss your case.
