Supreme Court rules on out-of-borough placements of homeless families

The Supreme Court has handed down judgment in the case of Nzolameso v City of Westminster [2015] UKSC 22 on the vexed question of when a local authority may lawfully provide accommodation outside its district to a household owed the 'main housing duty' under Part 7 of the Housing Act 1996. The decision will have significant implications for all district housing authorities in light of the shortages of suitable temporary accommodation and rising rents in the private sector.

The facts

The facts of the case will sound familiar to homelessness officers. Ms Nzolameso was a single mother of five children. She had serious health problems including HIV and Type II diabetes. She was evicted from her private rented accommodation in Westminster (where she had lived for 10 years) because of a reduction in her housing benefit. She applied as homeless and Westminster accepted that it owed her the 'main housing duty' under section 193(2) Housing Act 1996 to secure that suitable temporary accommodation was available for her and her children.

In light of a severe shortage of accommodation in Westminster the council offered her a five bedroomed house in Bletchley. She refused the offer of accommodation on the grounds that it was too far away from the people who helped her with her children, that she knew nobody in Bletchley, that she would not be able to remain with her GP, and that it would mean her children would have to change schools. The offer was upheld on review and the council decided that its duty had ended.

The reviewing officer relied in part on the fact that none of the children were taking GCSEs so could change school, and that there was no reason why the appellant could not receive the medical care she needed in Bletchley. The council's review letter included what appeared to be a standard paragraph setting out the severe difficulties that it had in sourcing accommodation within the borough, that each case was carefully assessed on its merits, and that in this case the council had concluded that it was reasonable to offer out-of-borough accommodation. Appeals to the county court and Court of Appeal were dismissed on the grounds that the reviewing officer must be assumed to have had regard to the resources available to the council and the pressures on it, and did not need to set out in detail all the circumstances including what accommodation was available in and nearer the borough and why it had not been offered.

The law

A local authority may only discharge its homelessness duties by securing that "suitable" accommodation is available for the applicant. Accommodation must be provided within the district of the authority "so far as reasonably practicable". The question of what is suitable has been fleshed out in the Code of Guidance (2006), the Homelessness (Suitability of Accommodation) (England) Order 2012, and associated Supplementary Guidance. The combined effect of the 2012 Order and Guidance is that local authorities are under a duty to accommodate homeless households within their district as far as reasonably practicable, and where that is not practicable must (where possible) try to secure accommodation as close as possible to where the applicant was previously living.

Section 11(2) of the Children Act 2004 requires local authorities to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children.

The Supreme Court's judgment

The Supreme Court allowed an appeal. The court confirmed that the obligation in section 11(2) of the Children Act applies to the question of whether accommodation is "suitable" under the Housing Act 1996, and stated that decision makers should identify the principal needs of the children and have regard to the need to safeguard and promote them when making a decision about whether accommodation is suitable.

The court disapproved the approach of the lower courts in assuming that local authorities had taken into account the requirements of the 2012 Order and Codes of Guidance. Such an approach would immunise "automatic" out-of-borough decisions from judicial scrutiny.

The court held that Westminster had not given serious consideration to its obligations as set out in the 2012 Order and Guidance and its decision was based on the incorrect premise that because there was a shortage of accommodation in Westminster the council could accommodate the applicant elsewhere unless she could give good reasons why she had to remain in the borough. The court was also critical of the council's failure to indicate what accommodation was available within the borough, or closer to the applicant's previous accommodation, and why this had not been offered to her. Those issues were fatal to the council's decision that its duty had come to an end, and the decision was quashed.

The most striking and significant section of the judgment is two paragraphs (38 and 39) of guidance directed at local authorities regarding how they should in future go about explaining their decisions as to the location of properties offered to applicants. The court stated that local authorities are bound to have made predictions about the likely demand for temporary accommodation and to have made arrangements to procure it, and that "the decision in any individual case will depend upon the policies which the authority has adopted both for the procurement of temporary accommodation, together with any policies for its allocation." Those policies should expressly reflect the requirements of the 1996 Act (including Codes of Guidance) as well as the relevant duties imposed by the Children Act 2004.

What this means for local authorities

The severe shortage of temporary accommodation, together with rising rents and increasing demands on homelessness services, mean that out-of-borough placements will remain an unavoidable reality for many local authorities. However, each case must be carefully and individually assessed on its merits, with regard to the 2012 Order, Code of Guidance, and duty to safeguard and promote the welfare of any children in the household. It will no longer be enough to cite the scarcity of accommodation within the borough and the absence of any compelling reasons why a household has to be accommodated there. Decision letters will need to set out what accommodation is available in borough, or nearer to the applicant's previous address and, if that accommodation is not to be offered, should set out detailed reasons for this.

Local authorities can expect the Supreme Court's guidance in relation to policies around the procurement and allocation of temporary accommodation to be repeatedly cited in suitability reviews and appeals, and should be prepared to robustly defend any such policies, as well as all out-of-borough placements.

How Bevan Brittan can help

Bevan Brittan's housing team regularly advises local authorities on their housing duties and functions. Our team has a wealth of experience advising and acting in homelessness reviews and appeals. We can also act as a 'critical friend', ensuring that homelessness strategies and policies comply with the relevant law and guidance, and can advise on making section 184 and review decisions as robust as possible.