R (M) v London Borough of Newham [2020] EWHC 327 Admin

What was the case about?

The case concerned a family with 4 dependent children who had spent nearly 15 years in three bedroomed ‘temporary’ accommodation provided by the London Borough of Newham following the acceptance of a full homelessness duty in 2005. The family included a daughter who suffered from a number of disabilities necessitating specialist bathroom facilities, and the family had raised this, together with the need for larger accommodation, with Newham on a number of occasions.

In December 2017, Newham notified the family that the authority had secured a four bedroomed house for the family and that it regarded the offer as suitable. In the offer letter, Newham warned the family that if they did not accept the offer then their case would be closed subject to a review on suitability.

In view of the warning, the family accepted the offer, but maintained that it was not suitable because it did not provide and could not be adapted for the bariatric bathroom, disabled toilet and walk-in bath or shower access, all of which were required for the hygiene and safety of the disabled child.

The review request was accompanied by a paediatric occupational therapy report supporting the family’s view that the property was not suitable for their daughter’s needs.

In February 2018, the authority’s review officer concluded that, in the light of the report from the occupational therapist, the temporary accommodation offered to M was not suitable.

It was accepted that helping the daughter to mobilise was causing shoulder injury to the mother. However, no further offer of accommodation was forthcoming.

In September 2019, the family made an application for judicial review on the basis that the defendant local authority was in breach of its statutory duty, under section 193(2) of the Housing Act 1996, to provide suitable accommodation. The hearing was expedited but more than two years after the claimant and his family had moved in, they were still living at the alternative accommodation.

Newham made submissions on the basis that the duty to provide suitable accommodation was not subject to any particular timescale, and that they had taken sufficient steps to try to secure alternative accommodation, despite the failure to actually do so (in part they alleged due to a failure by the family to make appropriate bids – this was disputed).

Newham also argued that the accommodation could be considered “suitable” on a short-term basis even if accepted that it would not be reasonable to continue to occupy it on a long-term or permanent basis.

What did the court decide?

The court decided that Newham was in breach of their statutory duty and had been since the date of their decision letter in February 2018 when they had acknowledged that the property was unsuitable.

The case of Birmingham City Council v Ali & Ors [2009] UKHL 36 had confirmed that in cases where accommodation was unreasonable to continue to occupy, resulting in a decision of homelessness, it could, nevertheless, be found to be suitable for a short-period or on a temporary basis. The judge distinguished this present case however, as the reviewing officer’s decision had not considered whether the family was in fat homeless but whether or not the accommodation they had been placed in was suitable; the family’s accommodation could not be considered suitable given that the review decision had specifically considered this fact and had concluded that it was not.

Once the accommodation had been deemed unsuitable, then the local authority must be regarded as in breach of its statutory duty to secure suitable accommodation, with a short delay only permissible where an authority had concluded that the accommodation was suitable in the short-term. The duty was not to provide suitable accommodation within a reasonable time, where the authority had already accepted it was not suitable.

The courts have differed over the years as to whether there is a concept of a reasonable time in which to discharge the Part VII s193 duty, in the context of people living in unsuitable accommodation at the time and thus homeless albeit housed.

In R v Newham LBC ex parte Begum (1999) 32 HLR 808 Collins J said this:

“While I have considerable sympathy with the Council, I do not think that the qualifications which [the Council] submits are necessary can be read into the words of the statute. Parliament has not qualified the duty in any way: it could have done. However, the situation for the Council is not quite as desperate as might be thought. While the duty exists, no court will enforce it unreasonably.” (page 816)

  1. He added:

“Furthermore, whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks. But there is a line to be drawn below which the standard of accommodation cannot fall.” (page 816)

Collins J’s analysis of the law did not preclude the possibility that a period of time would elapse between the authority’s acceptance of the section 193(2) duty and the making available of alternative accommodation. But this was on the basis that the concept of suitability would, in appropriate cases, allow that the existing accommodation was “suitable” for a short period of time and that the authority therefore was not in breach.

The judge in this case said that even if there was a concept in legal terms of a reasonable period in which to provide properly suitable accommodation, because for instance the inappropriateness of the housing that led to the finding of homelessness was not so grave as to make it immediately suitable for a little while longer, this had been well exceeded in this case.

The difficulties for A and her family caused by the current accommodation significantly undermined her health and well-being, her dignity and her ability to lead a reasonably independent life at home. They also impacted on A’s family and on her mother, in particular. The evidence is that, for some time, these issues had needed to be addressed as a matter of urgency. There was no evidence that Newham had taken the family’s case seriously and had made all reasonable efforts to secure suitable accommodation.

A judge at an earlier pre-trial stage had ordered a witness statement from the council regarding the steps taken and the reason for the difficulties experienced. The judge at the trial thought it would have been reasonable for the court to expect a “procurement officer” who had been involved in the claimant’s case, to give evidence on behalf of the defendant which explained, in detail, the efforts which had been made on the claimant’s behalf and exhibited documents to support his evidence, for example from the claimant’s case file. The officer who provided a witness statement was called a ‘Local Space Manager’ and he mis-stated the young woman’s requirements and thus exaggerated the difficulties faced by the council. It was not clear what researches he had carried out, or what the sources of his information were, or how he was able to assess the bathroom facilities in properties he mentioned. The judge said “…it is not credible that, as he appears to imply, only five 4 bedroomed properties have been available for rental in the private sector in the last two years, even looking as far afield as Nottingham.” 

The claimant had sought a declaration to this effect together with a mandatory order requiring the defendant to provide him with suitable accommodation within a period of eight weeks. The court made a mandatory order requiring Newham to provide suitable accommodation within 12 weeks. The judge said that the council’s short-lived efforts that were made in May 2019 when judicial review was threatened and in December 2019 after proceedings were issued suggested to him that a mere declaration would not lead to a sustained and thoughtful effort to assist the claimant and his family.

Learning for advisers and points for the public and for councils

This case established that, where a review clearly states that accommodation is unsuitable, then that decision immediately puts a local authority in breach of its statutory duty to provide suitable accommodation under section 193(2) Housing Act 1996.

Such a decision cannot be read as meaning that that accommodation may be suitable in the short-term; immediate and comprehensive (to be realistic in difficult times, best endeavours) efforts should be made by the local authority to secure accommodation (in which case relief within judicial review proceedings may even be withheld in certain circumstances because all JR remedies are discretionary and no council will be ordered to do that which is genuinely impossible).

Advisers should be aware that, in an application for a mandatory order the courts may be willing to grant some relief to authorities. This is because the courts recognise the practical difficulties for authorities in sourcing scarce accommodation in the context of a housing crisis where immediate compliance might be impossible.

At CASCAIDr we think that this case may well help relatives of those seeking the provision of specialist housing for people waiting to come out of assessment and treatment units, or anyone coming out of mental hospital with s117 rights. We like the line of case management directions as to a witness statement as to the efforts made, and the negotiations attempted because we believe that when commissioners say that ‘there’s nowhere suitable’ what they really mean is “there’s nowhere suitable for the price that we are willing to pay” or that there’s “nowhere where we’ve commissioned the necessary support services where there’s a vacancy”. We think that that is a downgrading of a similar provision duty under social services and mental health legislation as the securing duty discussed in the case above, such that it is seen as a discretion, in the end, not a duty, at all, any longer.