Nzolameso v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Clarke,Lord Reed,Lord Hughes,Lord Toulson |
| Judgment Date | 02 April 2015 |
| Neutral Citation | [2015] UKSC 22 |
| Court | Supreme Court |
| Date | 02 April 2015 |
[2015] UKSC 22
Lady Hale, Deputy President
Lord Clarke
Lord Reed
Lord Hughes
Lord Toulson
Appellant
Martin Westgate QC Lindsay Johnson
(Instructed by Hodge Jones & Allen LLP)
Respondent
Ian Peacock
(Instructed by City of Westminster, Contentious Section Legal Services)
Intervener (Secretary of State for Communities and Local Government)
Martin Chamberlain QC Oliver Jones
(Instructed by Treasury Solicitor)
Intervener (Shelter Children's Legal Service – written submissions only)
David Wolfe QC Shu Shin Luh
(Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 17 March 2015
(with whom Lord Clarke, Lord Reed, Lord Hughes and Lord Toulson agree)
When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority's own area where the homeless person was previously living? There is no doubt that, for a variety of reasons, such "out of borough" placements have become increasingly common in recent years. The latest national statistics show that in September 2014 a quarter of all temporary accommodation for homeless people was provided in a different council area, an increase from 21% in September 2013. The great majority of these were from London Boroughs (Department for Communities and Local Government, Statutory Homelessness: July to September Quarter, England, National Statistics, Housing, Statistical Release, 11 December 2014). However, local authorities have a statutory duty to provide accommodation in their own area "so far as reasonably practicable": Housing Act 1996 ("the 1996 Act"), section 208(1). And if that is not practicable, statutory guidance requires them "where possible", to try to secure accommodation as close as possible to where the applicant was previously living. This case is about the import of those duties for individual households who are offered an "out of borough" placement.
The appellant is a 51 year old single mother of five children, aged between eight and 14. She has many long-standing health problems: she is HIV positive, and suffers from Type II diabetes, hypertension, diabetic retinopathy and perhaps depression. She has lived in London since at least January 2000. From December 2008 to November 2012, the family lived in a privately rented four bedroomed house in Westminster. Her rent of £1,150 per week was covered by housing benefit. In 2012, however, a cap (known as the local housing allowance) was placed on the amount of housing benefit payable for privately rented properties according to their size and locality (known as the local housing allowance). Her maximum housing benefit was dramatically reduced. This meant that she was no longer able to afford the rent. The landlord was not prepared to reduce it and so she was evicted from her home in November 2012.
She applied to Westminster City Council under the homelessness provisions in Part 7 of the 1996 Act and the family were temporarily housed in two rooms in a hotel in the Royal Borough of Kensington and Chelsea on a bed and breakfast basis. This was near enough for the children to continue in their schools. On 17 January 2013, she was notified that Westminster had decided that she was homeless, eligible for assistance, in priority need, not intentionally homeless, and that they should not refer her case to another local authority where she was more closely connected. Hence they accepted that they owed her what is usually termed the "main homelessness duty" under section 193(2) of the 1996 Act, as they put it "a duty to ensure that you have somewhere suitable in which to live". Their temporary lettings team would be contacting her shortly "with an offer of self-contained temporary accommodation" in discharge of that duty.
On Thursday 24 January, the authority wrote offering her temporary accommodation in a five bedroomed house in Bletchley, near Milton Keynes. They had arranged for her to view the property at 12 pm on Monday 28 January. The letter explained:
"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."
The appellant rejected this offer because it was too far away. It was too far from people helping her with her children. There would be nobody there she knew. She had high blood pressure and wanted to stay with her GP. It would mean changing the children's schools. She had lived in Westminster for a long time.
The authority's immediate response, by letter of Friday 25 January, was that none of the children was of GSCE age, so it was suitable for them to move schools. The average journey time from the Bletchley property to Westminster was around one hour and 15 minutes. The property was of a suitable size for the family and "based on your circumstances there's no reason for us to place you within the borough of Westminster". Because she had refused the offer, their duty under section 193 had ended and they were no longer required to provide her with accommodation. The letter was headed "Notice that our housing duty has come to an end". This was no doubt because the duty under section 193(2) does not come to an end automatically when the applicant refuses to accept an offer of accommodation which the authority are satisfied is suitable; under section 193(5), the authority must serve notice that the duty has come to an end.
The appellant sought a review of the authority's decision under section 202 of the 1996 Act. She was interviewed for the purpose of the review, where she repeated her concerns and gave some more details of the help she received from her friends. Three of her friends were also interviewed. Two medical certificates were obtained which confirmed that her "chronic conditions [were] incurable and likely to worsen with further complications" and that she needed "safe accommodation to be able to take medication and stay well"; but a medical assessment could not "find anything medical to preclude residing in Milton Keynes".
The review was completed on 27 May 2013 and the reviewing officer confirmed the decision that the property in Bletchley was suitable and the duty towards her discharged. The decision letter dealt in detail with the family's personal circumstances. As to these, the officer's conclusions were: "I am not satisfied that the accommodation was unsuitable on the grounds that your medical and support needs are such that you have to live in Westminster"; the length of time she had lived in Westminster was "not a particularly long time and does not mean that you cannot live anywhere else"; none of her children were "currently sitting national exams and could … move schools without their education suffering"; and the accommodation offered was suitable and affordable.
The letter then refers to the duty in section 208 of the 1996 Act and states:
"As you are aware Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council's Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area."
This appears to be a standard paragraph which has appeared in a number of other decision letters emanating from the City of Westminster. The authority have produced no evidence of their policy in relation to the procurement of accommodation in order to fulfil their obligations under the 1996 Act, nor of the location of that accommodation, nor of the instructions given to the temporary lettings team as to how they are to decide which properties are offered to which applicants.
The appellant then appealed to the county court under section 204 of the 1996 Act. The appeal was heard in October 2013. The authority adduced evidence that at that date 52% of Westminster's temporary accommodation units were "in borough" and 48% "out of borough". Also produced was a report dated May 2012, from the Strategic Director of Housing, Regeneration and Property, produced for the relevant Cabinet Member's approval. This reviewed the demand for and supply of social rented housing and low-cost home ownership for the previous year and made supply and demand projections for the coming year. It revealed that in the nine months to the end of 2011 there had been 1072 homelessness applications and 394 acceptances; there was a total of 1783 households in temporary accommodation, of which 478 were "stage 2" (that is, after the main homelessness duty had been accepted); the housing benefit cap was leading to an increase in homelessness resulting from the loss of a private sector tenancy; at the same time it was becoming increasingly difficult to source self-contained temporary accommodation from the private sector, particularly in high rent areas; but at that time around 70% of their temporary accommodation was "in borough", with the majority of the non-Westminster stock in East London; it would continue to be secured in borough so far as reasonably practicable but would also be sourced out of borough in...
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