Housing

Wednesday 30 April 2014

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Nzolameso v Westminster CC 2015 UKSC 22 (Lady Hale, Lords Clarke, Reed, Hughes and Toulson): circumstances in which homeless applicants made be accommodated out of borough. Ms Nzolameso lived in a four-bedroom house in Westminster with her five children, aged 8-14. She had a number of health problems including HIV, diabetes and depression among other things. The family had lived in the area for over four years, their support network was based in the locality and the children attended school there. Following the introduction of the ‘benefit cap’ in 2012 Ms Nzolameso became unable to afford the rent and applied to Westminster CC as homeless. Westminster accepted that it owed Ms Nzolameso the main housing duty and made her an offer of temporary accommodation in Bletchley near Milton Keynes. Ms Nzolameso refused: the property was too far away and moving would disrupt her support network and require the children to change schools. Westminster made the decision that, having refused an offer of suitable accommodation, the duties owed to her had come to an end. The decision was upheld by the reviewing officer who issued a decision containing a ‘standard paragraph’ indicating that it was not reasonably practicable to accommodate all applicants in borough given the housing shortage in Westminster. This decision was upheld on appeal to the County Court, following which the interim accommodation which been provided by Westminster pending appeal was terminated. Children’s services refused to accommodate the whole family, and instead, the children were split up and accommodated by separate foster parents, and care proceedings were begun. A second appeal to the Court of Appeal was dismissed in late 2014. Then in April 2015 – the High Court having by this time ordered interim accommodation to be provided to the family pending a further appeal - the Supreme Court allowed a final appeal by Ms Nzolameso. Section 208 Housing Act 1996 required a local authority to provide an applicant with accommodation within its own district in so far as reasonably practicable. And where this was not practicable the code of guidance required applicants, ‘where possible’ to be accommodated as close as possible to where they were previously living. In addition, s11 Children Act 2004 required that a local housing authority in such a case should identify the principal needs of the children, both collectively and individually, and have regard to the need to safeguard and promote those needs when making their decision. Further, as a general principle, decisions in homelessness cases must have a proper evidential basis, and contain sufficient reasons for the court to identify whether or not the authority had met its obligations. The decision in this case, the Court unanimously held, fell short of these requirements. There was no indication within the decision of what accommodation was available in Westminster and why it had not been offered to Ms Nzolameso. There was no indication of what accommodation was available near to Westminster. No questions had been asked to assess how practicable it would be for the family to move, whether school places were available or what Ms Nzolameso’s medical conditions required. And in addition, Westminster could not show that they had discharged the s11 duty. The review decision was quashed accordingly. Shu Shin Luh appeared for intervener, Shelter. Click here for the judgment.

R (AM) v Havering LBC [2015] EWHC 1004 9 (Admin) (Cobb J): duty to accommodate intentionally homeless family, and assess needs under Children Act 1989, where local housing authority have placed family out of borough, and accommodation due to come to an end. The family in this case consisted of AM (the Claimant), his wife, his daughter (aged 2 years 11 months at the time of issue of the claim) and his young baby (aged 12 weeks). AM applied to Tower Hamlets LBC, the Second Defendant, as homeless in October 2012 and was provided with temporary accommodation. Tower Hamlets reached a decision on the application in March 2013 finding that AM had made himself intentionally homeless, having given up a tenancy in Birmingham to come to live with his wife in the borough. A referral was made to Tower Hamlets children’s services department, under s213A Housing Act 1996, with a request that an assessment be carried out under s17 Children Act 1989. Children’s services responded in July 2013 indicating that the family did not meet the threshold for an assessment. Later that year, in October 2013, AM’s daughter who suffered from encephalitis and epilepsy, was hospitalised. While she was in hospital, the nursing staff – concerned about the ability of AM and his wife to cope with their daughter’s medical needs – made a further referral to children’s services at Tower Hamlets LBC. Following this referral AM’s wife disclosed to a social worker that she had been the victim of domestic violence perpetrated by AM, and that they had separated for a time, though wished to reconcile, which they duly did. Tower Hamlets recorded that an ‘assessment should be considered’ and referred AM’s wife to a local children’s centre to help with her parenting. In February 2014, Tower Hamlets obtained a possession order in respect of the interim accommodation which the family had been occupying. AM applied as homeless to Tower Hamlets once more. The family were provided with interim accommodation under s188(1) Housing Act 1996 in Haringey for a short time, before being accommodated in Romford, in the area of Havering LBC, the First Defendant. In May 2014 Tower Hamlets decided, once again, that AM had made himself homeless intentionally. Notice was given that the accommodation would be withdrawn on 3 July 2014. On 2 June 2014 a further referral was duly made by the housing department at Tower Hamlets to the children’s services department, pursuant to s213A Housing Act 1996. Children’s services requested the housing department to continue to accommodate the family pending an assessment. This request was refused. The assessment process commenced on 1 July 2014: two days before the family were due to become homeless. On 2 July 2014, the day before the family’s accommodation was due to end, the social worker from Tower Hamlet’s children’s services advised the family that the responsibility to assess their needs lay with Havering LBC, and that a referral would be made. Later that same day, AM contacted children’s services at Havering to inform them that he would be evicted the following day and asked for help. He was referred to the Family Mosaic housing association. Following this, the social worker at Tower Hamlets faxed a letter to Havering stating that the family were due to become homeless the following day and that the responsibility to assess lay with Havering, where the family were residing. Thereafter Tower Hamlets abandoned the assessment. Meanwhile Havering refused to assist indicating that ‘this is a clear case of attempting to dump responsibility’, that the family should return to Tower Hamlets who should then take responsibility for assessment and provision. Havering maintained this position over the coming days indicating that responsibility lay with Tower Hamlets as that was where the family were ‘ordinarily resident’. On 11 July 2014, AM and his family were evicted and became street homeless. Havering responded by providing them with hostel accommodation over the weekend. A social worker from Havering then interviewed the family and concluded that the children were not ‘in need’ as the family could obtain accommodation through their own efforts and that in any event, the responsibility to accommodate lay with Tower Hamlets. Havering subsequently refused to carry out an assessment under s17 Children Act 1989 stating that it was not necessary. AM applied for judicial review against Havering and Tower Hamlets on 29 July 2014. Cobb J allowed the claim. The duty to assess under s17 Children Act 1989 fell initially on Tower Hamlets, when the family were physically present in the area, and latterly on Havering. Having embarked on an assessment. Tower Hamlets had acted unlawfully in terminating the assessment upon the family’s move to Havering: in doing so they had failed to act reasonably. Concurrently, Havering had erred in failing to carry out an assessment at that time. The fact that the family were not ‘ordinarily resident’ in Havering was irrelevant. Further Havering’s conclusion that the family did not meet the ‘low threshold’ for an assessment was unsustainable given that they were homeless. These problems were compounded by Tower Hamlet’s failure to make a timely referral to Havering under s208 and s213 Housing Act 1996, and the failure to provide Havering with accurate information about the family’s case. Finally, while Havering had a power to accommodate the family in this instance under s17 Children Act 1989, the primary duty to accommodate fell upon Tower Hamlets under s190(2)(a) Housing Act 1996: the duty to provide accommodation to intentionally homeless, priority need applicants, ‘for such period as will give him a reasonable opportunity of securing accommodation’. Accommodation should have been provided under this section pending the assessment by Havering. Jan Luba QC and Tim Baldwin appeared for AM. Stephen Knafler QC represented Havering LBC. Click here for the judgment.

Deregulation Act 2015: amendments to the Housing Act 2004 made by ss30-32 Deregulation Act 2015, amending the law on tenancy deposits, came into force on 26 March 2015. The effect of the amendments, among other things, is to circumscribe certain aspects of the decision in Superstrike Ltd v Rodrigues [2013] EWCA Civ 669. Click here for the amendments.

Pre-action protocol for possession claims by social landlords: new protocol in place from 6 April 2015. Replaces and subsumes the old rent arrears protocol. Click here for the protocol.

Housing (Wales) Act 2014: came into force on 27 April 2015. It replaces the Housing Act 1996 as the primary legislation governing homeless applications to local housing authorities in Wales. An accompanying code of guidance can be accessed here. Among other things the Act reduces the importance placed on whether an applicant made him or herself intentionally homeless, and contains a limited duty to help to secure accommodation for all eligible applicants irrespective of circumstance. The Act also makes minor amendments to Part VI Housing Act 1996 in so far as it relates to the allocation of social housing in Wales. Click here for the legislation.

Darby v Richmond upon Thames LBC [2015] EWHC 909 (QB) (HHJ McKenna sitting as a High Court Judge): ambit of duty of care when allocating social housing. Lee Rabbett’s, on whose behalf the claim was brought, was a leukaemia sufferer. In 2010, following a bone marrow transplant which left him highly susceptible to infection, he was discharged from hospital to the home of his Mother (the Claimant), where his sister and her baby also lived. The Defendant, Richmond upon Thames, was informed repeatedly that Mr Rabbett was at risk of infection living with the young baby, and alternative accommodation was sought under Part VI Housing Act 1996. The application was accepted and points were allocated to Mr Rabbett based on his medical conditions. But no offer of accommodation was made to Mr Rabbett and in January 2011 he was hospitalised with an infection and died shortly after. His Mother, as administratrix of his estate, brought a claim in negligence against Richmond. HHJ McKenna struck out the claim. As a matter of public policy no duty of care was owed when allocating accommodation under Part VI Housing Act 1996. The remedy where a local housing authority failed to administer their scheme properly was by way of judicial review or complaint to the Ombudsman. Click here for the judgment.

Okadigbo v Chan [2015] EWHC 4729 (Males J): guidance on level of sanctions for failure to deal with tenancy deposit in accordance with s213 Housing Act 2004. The Respondents were the landlords of the Appellant tenants, who occupied property let to then under an assured shorthold tenancy. The Respondents brought a claim against the Appellants for possession and arrears of rent. The Appellants counterclaimed for failure to protect their deposit in a tenancy deposit scheme. The Respondents, who had protected the deposit and provided the prescribed information around seven months outside of the statutory time limit, admitted liability. The judge at first instance, in exercise of the discretion under s214(4) Housing Act 2004 to impose a sanction of between 1-3 times the value of the deposit, made an award equal to the deposit finding the case to lie at ‘the lowest end of the scale of culpability for non-compliance’. The judge noted that the Respondents were not experienced landlords, that this was the first time that they had let out any property and that they were letting out their home, and that they had ‘quite properly’ put the matter in the hands of professional managing agents who let them down by not complying with the terms of the Housing Act 2004. Males J dismissed an appeal by the Appellants. The judge had not erred in the exercise of her discretion as to the level of compensation which should be awarded. Click here for the judgment.

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