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Social Welfare Update: No “temporal leeway” in considering out of borough placement

Wednesday 23 December 2020

Blog by Connor Johnston of the Garden Court Housing Team.

Ed Fitzpatrick and Sophie Caseley of the Garden Court Housing Team acted for the Respondent Ms Broderick.

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London Borough of Bromley v Broderick [2020] EWCA Civ 1522
16 November 2020

In late 2017 B, together with her young son, applied to Bromley LBC for homelessness assistance. B was a survivor of domestic abuse and at that time she was living in refuge in the area of Bromley. Bromley accepted the main housing duty on 4 December 2017 and, on 19 December 2017, made B an offer of accommodation in Kent, around 30 miles outside of Bromley. B did not accept or refuse the property initially. There followed some back and forth in correspondence between Bromley, B, Citizens Advice and Women’s Aid (on behalf of B) in which Bromley were asked to consider looking in the Erith/Dartford area for a property closer to B’s family members who lived in Bromley, Bexley and Croydon. Throughout this time Bromley maintained the position that the property in Kent was suitable and did not identify any properties in, or closer to, their area. B refused the Kent property on 29 January 2020 and Bromley discharged the duty to her.

This decision was upheld on review. But B’s appeal against that decision was upheld by a Circuit Judge who held that:

"26. There would seem to have been a bit of temporal leeway with [Miss Broderick] and the offer of 186a. As [Miss Broderick's] objections were articulated and as the [Council] received pleas from third parties why could not the [Council] have looked at the position again in relation to properties remaining or becoming available on or after 20th December? This point was not addressed, answered or evidenced in the Review Letter, as it should have been."

Bromley appealed. In defence of the Circuit Judge’s decision it was argued on behalf of B that:

“37… the Judge had been right to consider that in this case there was "temporal leeway". What the Council ought to have done was put Miss Broderick in the mix for a few days (say, up to five) after offering her 186A Richmond Road. That followed from the duty recognised in Nzolameso v Westminster City Council to try to place a household, if not in-district, then at least as close as possible to where they were previously living. In looking at the position simply on the date of the offer, viz. 19 December, the Council had not adopted a fair approach.”

The Court of Appeal rejected this argument. The suitability of the accommodation offered and the timing of the offer were distinct issues. Suitability was to be determined at particular point in time and there was no obligation on a local authority to consider the issue over a period of days.

“38. Where a local housing authority makes an offer of accommodation, at least three distinct questions can, as it seems to me, potentially arise: first, whether the accommodation offered is suitable; secondly, whether the authority ought to have made an offer (or otherwise performed its housing duty) on a different date; thirdly, whether the authority ought to revisit the suitability of the accommodation at a later stage.
...
42. Moving on to the second of the three questions (whether the authority ought to have made an offer, or otherwise performed its housing duty, on a different date), Lewison LJ, as I have already mentioned, distinguished between "suitability of accommodation" and "impugning an authority's decision to discharge its full housing duty at a particular time" in Alibkhiet v Brent LBC . Lewison LJ went on to say that, were an authority to be aware that a development that would provide affordable housing was approaching completion, that "may well be relevant to the question whether it should discharge its housing duty immediately, or whether it should wait until the development is complete". I would think, however, that it would be relatively rare for an authority's decision to make an offer on a particular date rather than to delay to be susceptible to successful challenge, especially where, as was the case in Alibkhiet, a "shortage of housing … is the constant backcloth against which all housing decisions are … made". In a more normal case, it will not be possible to say that the authority has acted outside its discretion.

43.  Turning to the first question (whether the accommodation offered is suitable), that, it seems to me, falls to be answered by reference to the circumstances at a specific point. While the second and third questions may require examination of changes over time, suitability is to be determined as at a particular time. Where an applicant has accepted an offer and asked for a review, the focus will be on the position when the review decision is made, in accordance with Mohamed v Hammersmith and Fulham London Borough and the cases following it. That, however, will not be so where an applicant has refused an offer of accommodation and the housing authority has deemed its duty to the applicant to have come to an end in consequence. In such a case, it makes sense to me that suitability should be determined on the basis of the position at the date the offer was made.

44.  Mr Fitzpatrick, as I have said, argued that Miss Broderick should have been put in the mix for a number of days. An offer's suitability would, on the basis of his submissions, be assessed over a period of, say, four or five days. However, the 1996 Act does not in terms require suitability to be assessed in this way. Moreover, any such approach would be impractical.” 

The Judgment is available here.
 

Comment

It will be interesting to see whether this case progresses to the Supreme Court because there does seem to be an important issue at stake here. In one sense, I can see that this is just an extension of the reasoning in Alibkhiet (quoted in the passages above). But at the same time, I wonder whether it is entirely consistent with the approach in Nzolameso and with the statutory language. I had understood Baroness Hale in Nzolameso to be treating the obligation under s208 – to secure accommodation in borough is so far as “reasonably practicable” – as part and parcel of suitability. I.e. failure to comply with s208 means the property is not suitable. And the language of s208, to me, certainly seems broad enough to encompass a bit of “temporal leeway”. For example, if a property is not available in borough today, but might come up in a day or two than its not stretching the statutory language much to suggest that it would be “reasonably practicable” to hold on for a few days and provide that property. If that is right then, in some case, suitability would necessarily need to be addressed over a few days and not solely at a point in time. I don’t think this would be required in every case. In most cases the general shortage of accommodation and constant in-flow of new homeless applicants will mean that it is not “reasonably practicable” to hold on for a few days. But in a case like this where a person has good reasons to be placed in borough and has explicitly asked to be considered for accommodation closer to the area and that request is made in the context of an ongoing dialogue about suitability which takes place over a few weeks, then I would have thought the local authority can and potentially should take a slightly longer view. It goes without saying, as the court noted, that the backcloth to all of this is a huge shortage in accommodation for local authorities. But I’m not convinced that is a complete answer to this. The fact that housing is in short supply may well mean that the local authority that looks for accommodation over a period of days is unable to find anything closer to home. But it doesn’t seem to me to provide a reason not to look.

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