The Queen v Aurora Sacupima and Others ex parte the London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DYSON |
| Judgment Date | 26 November 1999 |
| Judgment citation (vLex) | [1999] EWHC J1126-9 |
| Docket Number | Case No C0/2644/99 Case No C0/2858/99 Case No C0/4076/99 Case No C0/3315/99 Case No C0/4115/99 Case No C0/4339/99 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 1999 |
[1999] EWHC J1126-9
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
The Hon Mr Justice Dyson
Case No C0/2644/99
Case No C0/3622/99
Case No C0/2858/99
Case No C0/4076/99
Case No C0/3315/99
Case No C0/4115/99
Case No C0/4339/99
Mr Jan Luba and Mr Stephen Knafler (instructed by Messrs Hereward & Foster and by the Aina Khan Partnership for the Applicants)
Mr David Matthias and Mr Steven Woolf (instructed by the Solicitor to Newham Council for the Respondent)
Friday, 26 November 1999
Introduction
There are before me 7 applicants who seek to challenge decisions made by the Respondent housing authority under Part VII of the Housing Act 1996 ("the 1996 Act"). They are all homeless persons. One issue that is common to all the applications is whether the Respondent lawfully discharged the interim duty owed under section 188 of the 1996 Act to provide suitable temporary accommodation pending a decision as to whether it owed a duty to provide suitable longer term accommodation under section 193. On behalf of three of the applicants, Mr Knafler additionally submits that the Respondent was in breach of other duties arising under Part VII. I shall deal with these additional points after I have decided the questions that are common to the 7 applications.
Each applicant was, until becoming homeless, a resident in the London Borough of Newham. Each applied to the Respondent for the provision of alternative accommodation. Each was required by the Respondent to remain with his or her family in the accommodation until the day of eviction by the bailiffs, and then to attend at the Council offices.
The applicants were then informed that the Respondent would not be securing accommodation for them in its area, or in any neighbouring area, or in London at all. They were told that bed and breakfast accommodation had been secured for them at a seaside resort, such as Great Yarmouth, Brighton and Southend. All the applicants were on income support, and unable to afford the cost of travelling to Newham to continue with schooling, employment or medical care of themselves or members of their families.
Each applicant sought permission to move for judicial review, and at short notice obtained interim orders from the Court requiring the provision of accommodation which was closer to Newham. In each case, such accommodation was immediately found and provided.
It is submitted on behalf of the applicants that the decision to secure bed and breakfast accommodation for each of them at the seaside was unlawful. The conclusion that such accommodation was suitable was taken without regard to all relevant considerations and/or was unreasonable in the Wednesbury sense. The Respondent contends that the decision was lawful. Before I discuss the arguments further, I need to refer to the material statutory provisions.
Statutory provisions
So far as material, the 1996 Act provides as follows.
"175. (1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he —
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
…..
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.
…..
182. (1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.
…..
184. (1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves —
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
…..
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
…..
188. (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
…..
193. (1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation is available).
(2) Unless the authority refer the application to another local
housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years ('the minimum period'), subject to the following provisions of this section.
…..
206. (1) A local housing authority may discharge their housing functions under this Part only in the following ways —
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.
…..
208. (1) So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.
…..
210. (1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to
Parts IX, X and XI of the Housing Act 1985 (slum clearance; overcrowding;
houses in multiple occupation).
(2) The Secretary of State may by order specify —
(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and
(b) matters to be taken into account or disregarded in determining whether accommodation is suitable for a person."
The policy adopted by the Respondent
Mr Williams is the Respondent's Homeless Co-ordinator. In his first witness statement, he describes in some detail the approach of the Respondent to the discharge of its duty to secure for these applicants suitable accommodation under section 188. He says that they could not provide anything more suitable for these applicants than what was provided when the offer was made : "we are constrained from doing everything that we might wish because we do have to contend with a very serious shortage of resources" (paragraph 3). At paragraph 4 he says:
"….. we are constrained by what accomodation is available to us at that point in time. Very often it will only be bed and breakfast accomodation, and often the only bed and breakfast accomodation available will be outside the Borough. Nonetheless, we do our utmost to ensure that the interim accomodation provided is suitable to the reasonable needs of the family in question for the short period (normally no more than 28
days) required for us to make our decision as to the duty (if any) that
owe to the family under Part VII of the Act."
He explains that their task is not made any easier by other Boroughs accommodating large numbers of their own homeless households in the self-contained and the bed and breakfast accommodation that does exist in Newham. The homelessness crisis is of "unparalleled proportions", exacerbated by the large number of asylum seekers. In the year ending 31 March 1999, the Respondent overspent its homeless temporary accommodation budget by £2.5M. It is obliged to turn to bed and breakfast accommodation "as a last resort" when no other form of temporary accommodation is available.
He states that the main forms of temporary self-contained accommodation that exist are "leased" (leased by private owners to the Respondent and sublet), "Non-Secure" (Council owned properties let on weekly non-secure tenancy agreements), and "Housing Association Leased Scheme" (assured shorthold tenancies granted by Housing Associations pursuant to agreements with Newham). There are strictly limited amounts of such accommodation available. As the number of applicants rises inexorably, the Respondent is forced into even greater reliance on bed and breakfast accommodation. This has serious financial ramifications, and the Respondent will once again seriously overspend its homeless temporary accommodation budget.
There are relatively few hotels in Newham. The Respondent belongs to the Bed and Breakfast Information Exchange ("BABIE"). This is an arrangement between London local authorities by which they agree how much they will pay hoteliers for accommodation, and what standards of accommodation they will require. The current agreed BABIE rate for a double room is £27 per night. Mr Williams says that the Respondent cannot pay more without breaking the BABIE agreement, and more importantly, because it cannot afford to pay more.
When the Respondent has taken all available rooms in hotels in Newham which are of the...
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