R (Aweys & Others) v Birmingham City Council [2007] EWHC 52 (Admin)

This case dealt with seven claims for judicial review together due to the manner in which the defendant, Birmingham City council (Birmingham), dealt with the claimants’ homelessness applications.  In each case Birmingham accepted they were homeless in priority need and that their homelessness was not intentional.  Thus the full duty under Part VII of the Housing Act 1996 was owed.  The claimant’s claim that Birmingham housing allocation policy and the method it adopted in dealing with their claims was irrational and unlawful.  In one case it was alleged that a scheme applied by Birmingham known as Home Options was also unlawful.  The court granted permission to each of the claimants and treated the hearing of each as the hearing of substantive claim.  In two cases a breach of Article 8 ECHR was also raised.

Part VII Housing Act 1996 provides that a person is homeless if he has no accommodation available for his occupation in which he has a legal right to remain.  A person is to be treated as not having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.  Thus there are two types of homelessness, the first being described as ‘roofless’ where the individual has nowhere to live, and the second, described as ‘homeless at home’ where the individual has a roof over his head but he cannot be expected to remain.  Under section 184 of the Act a housing authority has a duty to make inquiries to satisfy itself that the individual is eligible for assistance and if so what is the extent of the duty owed.  The threshold for this duty is a low one and may be triggered where an applicant states either orally or in writing that he may be homeless or is threatened with homelessness.  Section 188 imposes an interim duty where a person might be homeless and in priority need.  Since the presence of children produces a priority need, all the claimants in this case were in priority need if they were homeless.  The duty is to secure accommodation pending a final decision on the application for housing.  Section 206 provides that any temporary accommodation provided must be suitable.  A housing authority has a duty to take appropriate action if it becomes aware that the housing conditions are hazardous and present a risk of harm to the health and safety of actual or potential occupiers.  A housing authority may cease to be subject to its duty if, having informed the applicant of his right to review and the consequences of refusal, it makes an offer of suitable accommodation to an applicant and the applicant refuses.  The Homelessness Act 2004 requires a local authority to formulate a homelessness strategy for preventing homelessness in their area and ensuring that sufficient accommodation is available for the people in its area.   Birmingham’s policy is to wait until it can provide accommodation which has a degree of permanency in order to discharge its duty.  Each local authority must also have an allocation scheme for determining priorities and the procedure in allocating housing.  The scheme should give certain preferences to defined categories of people according to status and circumstances.  Birmingham’s scheme contained five bands of priorities from A to E (A being the highest priority need).  At 11.1.3 it states Homeless households whom the Council has accepted that it has a duty to re-house but who are not currently in temporary accommodation arranged by the council are placed in Band B.  The scheme emphasises that accommodation must always be suitable. This means it must be of a size to accommodate the whole family and should be in a location that was requested or close to that location given the availability of housing stock and urgency of needs.

All of the claimants’ homelessness situations involved the second type of homelessness i.e. ‘homelessness at home’ and each had a large number of children living in the household.   All were all expected to remain in the accommodation they were in pending an offer of suitable permanent accommodation.  In some cases, having accepted that it had a duty under s.193, Birmingham failed to make offers of suitable accommodation in a timely manner and in light of hazards identified by the council  Birmingham acknowledged that the accommodation was “slightly overcrowded” in two cases but said that as it was not permanent it did not need to be ideal.   The claimants were allocated to Band B as their original accommodation was not considered temporary. One of the claimants had not been offered any alternative suitable accommodation for a year.

The court held that Birmingham had failed to deal with the claimants in accordance with the provisions of Part VII of the Act. It was important that local authorities should appreciate that, if they decided that the s.193 duty would only be discharged by the provision of settled accommodation and particularly if that was to be accommodation provided by them under Part VI of the 1996 Act they had to ensure that in the meantime the homeless person was provided with suitable accommodation. For the homeless at home, their existing accommodation could never be regarded as suitable, even for a short time, since they were only homeless if it was not reasonable to expect them to continue to live there. As it had been accepted that the claimants were homeless, those who were in local authority housing had to be in temporary accommodation arranged by the authority and should therefore have been allocated to Band A. Suitable accommodation had to be provided directly or within a reasonably short time, and that might have to be temporary if there were likely to be delays in getting anywhere permanent. If the local authority wished to avoid the need to provide temporary accommodation, it had to give priority to all those to whom a duty under s.193 was owed.  It was impossible to justify the division between Band A and Band B.  Each was in temporary accommodation and those who were homeless at home and so relegated to Band B were in unsuitable accommodation so that there was an ongoing breach of duty.  Those in other temporary accommodation because they were roofless could be in suitable accommodation and so hardly deserved priority over those in unsuitable accommodation.  There was a real concern that the local authority’s approach was driven by the financial advantages that flowed to it from being able to show that it was making less use of temporary accommodation in that homeless at home were not regarded as being in temporary accommodation, although as a matter of fact they clearly were.  Thus the policy as it stood was incapable of complying with Part VII of the Act for the homeless to whom the full duty was owed. It was in that respect unlawful.

In respect of the Article 8 claim, the court could not find any positive act of the council which interfered with the family or private life of either claimant.  However, it stated that much would depend on the views of the judge hearing the case as to the effect of the failure by Birmingham to provide suitable accommodation on the claimants and their families.  The court did not strike out the claims and they would be heard in full at a future date.

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