Housing authorities have statutory functions relating to homeless persons and people seeking Council housing. If they have retained council house stock, they also have housing management functions in respect of those homes, and the ordinary maintenance responsibilities of land owners and landlords under statute and common law principles.
However, the National Assistance Act and Mental Health Act also require the provision of accommodation where there is a community care need or a need for accommodation by way of mental health aftercare – and whilst those functions are more obviously relevant where there is a need for care and attention to be contracted for in conjunction with the accommodation, it has been held that the former, at least, can lead to a duty to provide bare or unregistered accommodation under arrangements made by social services with the provider.
Thus as between social services departments and housing departments, it is essential for good management and inter-agency co-operation to be able to agree when a difficulty constitutes a pure ‘housing’ need or something more significant, triggering social care responsibilities.
If there is a need for accommodation which is clearly a pure housing need, it is lawful to refuse to assess for community care services, and merely sign-post people off to the housing authority; but if the need springs from a situation of vulnerability (currently unsuitable or undesirable housing circumstances for an elderly, sick, mentally disordered or disabled person, for instance) then the duty under s47 of the 1990 Act is triggered, even if housing functions are also engaged. There is a duty in legislation for social services authorities to invite a Housing authority to assist in an assessment if it appears that the person has such needs. There is no duty to accept the invitation. If a refusal was unreasonable, it could probably be challenged.
Even if social services refers the client to housing, social services cannot wash their hands of the problem having commenced an assessment. They must wait to see if the person’s situation is acknowledged to trigger a housing duty and what the proposals are for Housing fulfilling its duties within a reasonable time.
It is rumoured that Housing Departments often reject people’s applications for being owed a housing duty, in situations where they could successfully challenge the decision in Court, but most people don’t bother. They just go back to social services who may therefore be made responsible by default for accommodation as well as services, with no option of renting the accommodation to the client open to the social services department. Hence knowledge of the housing law interface is an important part of managing the accommodation role of a local authority.
In the Batantu case, which explored the interface between the two areas of statutory functions, the judge set out the statutory framework and the case law, showing how they can lead inexorably to a social services duty to provide accommodation, once criteria of need under s21 National Assistance Act have been triggered, even if it means going out and purchasing accommodation. The underpinning to this argument is as follows:
- Section 47 NHSCCA requires a local authority to assess all those who evenmay be in need of community care services, and having regard to the results, decide whether the needs call for provision.
- Community care services include services which an authority may provide or arrange to be provided under (amongst other provisions) Part III of the National Assistance Act, in which s21 (the residential accommodation function) is included.
- Directions (LAC 93/10) have turned s21 from a power into a duty to accommodate certain persons; namely those who are in urgent need and others who are ordinarily resident in the area who are in need of care and attention for certain reasons, if that care and attention is not otherwise available to them.
- R v Avon CC ex p Mheld that an authority under such a duty, must provide appropriate accommodation to the client.
- Residential accommodation is not confined to registered residential care – it can include ordinary and sheltered housing, as was held inR v Bristol CC ex p Penfold and the asylum seeking bed and breakfast cases (such as Secretary of State for Health, ex parte Hammersmith and Fulham London Borough Council).
- R v Sefton MBC ex p Help the Agedheld that the duty arises as soon as the authority has decided that the care and attention are needed and that they are not otherwise available to the client.
- R v Wigan MBC ex p Tammadgeheld that once an authority has assessed someone as having a need for larger accommodation, whether as a community care service under s21 or as a service to a child or children in need, the authority will be under a duty to make suitable provision, regardless of resources, if it is the only way of meeting the need.
- R v Kensington and Chelsea LBC ex p Kujtimre-iterated that the s21 function is a duty and not a discretion and that the reference in the assessment section to deciding whether the needs call for a service could not downgrade the s21 duty back into a discretion. That was the inevitable result of overlaying the 1990 Act on top of other pre-existing statutory functions from the past.
- Resources available to the authority are relevant in different ways at different stages of the s21 function. During the assessment, resources are relevant to a limited extent via thesetting of criteria for identifying who is in need of care and attention: confirmed in ex p Sefton. Having made a positive assessment of need, a shortage of resources is not relevant in terms of justifying a refusal to provide – ex p Kujtim. During detailed care planning, resources are relevant only to the extent of informing the evaluation of how the need will be met, once the need has been assessed; and even then, only consistently with providing appropriate accommodation, in accordance with the Sefton judgement at first instance (Jowitt J.).
The couple in the Batantu case had rejected a short let in private sector accommodation, because of the lack of security of tenure and the rent level and the mans pressing need for security of housing. The judge thought this was perfectly reasonable. Housing departments should therefore take this approach into account when refusing to make another offer or deeming somebody to be intentionally homeless, and not just in the context of transfer offers.
The argument that Housing could be relied upon to come up with something in the end was rejected because the judge identified that the s21 duty is specifically that of the social services committee. The housing list was but one of the ways in which accommodation might be provided.
The argument that the failure to provide was lawful, given the reference in s47(3) of the 1990 NHSCC Act to the authority taking into account any services which are likely to be made available to the client by the Housing or Health authority, was also soundly rejected, on the basis that this particular authority had gone and completed the assessment process by coming up with a Care Plan, in which it was clearly stated that the client needed re-housing, as a community care service.
This aspect of the judgment does not offer a convenient let-out to other authorities, however, simply to keep the assessment decision open and un-made. The keeping open of an assessment process for over a year, pending provision of ordinary housing by the Housing Department, would be likely itself to attract challenge for unreasonable delay (as occurred in R v Sutton LBC ex p Tucker after 2 years and 3 months).
In the case of Bernard and another V Enfield LBC, damages of £10,000 were awarded against the LA for breach of the Human Rights Act where a severley disabled woman had fallen into an administrative void, as the judge put it, between the housing and social services department, and had been left in toatally unsuitable accommodation for over two years.
In a more recent case, Mooney v Southwark LBC, the court held that a disabled person living in unsuitable social housing could not simply require suitable accommodation to be provided under s.21 NAA and evade the resource constraints that often cause a long wait for suitable housing. The claimant’s assessment, by her community care team, showed that they had not concluded that she required new accommodation for her needs to be met. The court observed that s21 (8) NAA was in play which sought to draw a dividing line between housing and social services responsibilities in relation to housing. A local authority was not “required or authorised” to make any provision that was authorised or required under any other enactment. In other words, suitable accommodation could be provided for the claimant under the housing legislation and this prevented a separate obligation arising under s.21