Case No. EWHC-185-(Admin)

108.In Birmingham v Ali [2009] UKHL 36, on appeal from R (Aweys) v Birmingham, the relevant four Claimants applied to the housing authority (HA) for accommodation based on asserted homelessness under Part 7 of the Housing Act 1996. Each either had a large family or was suffering disrepair. The HA asserted that they could leave them homeless at home until the final decision under S.193 and made an allocation decision about how fast they would get permanent housing. The judicial review claim was successful and the judge granted declarations and mandatory orders. The HA’s appeal to the Court of Appeal was dismissed. In the House of Lords the HA’s appeal was granted. In summary the “suitability” under S.193(2) of the temporary accommodation – homeless at home - had a temporal element (short term). It could be suitable despite it not being reasonable for the Claimants to continue to occupy longer term. Incidentally the judge’s decision on the allocation policy as unlawful was upheld but that is not relevant to the case before me. 109.Baroness Hale gave the lead judgment. The following passages are relevant:On S.188(1):“17… If the authority have reason to believe that an applicant “may be homeless, eligible for assistance and have a priority need”, they must secure that accommodation is available for his occupation pending a decision as to what duty is owed: section 188(1). Priority need is then defined, and includes families withdependent children: section 189(1)(b).”On suitability:“18Whether the authority are securing interim accommodation under section 188(1) pending a decision, or securing accommodation after the decision has been made under section 190(2) or 193(2), they may provide the accommodation themselves or secure that it is provided by someone else. However, the accommodation secured has to be “suitable”: the 1996 Act, section 206(1). In deciding what is “suitable” the council must “have regard” to Parts IX and X of the Housing Act 1985 and Parts 1 to 4 of the Housing Act 2004 (which relate to slum clearance and overcrowding) and also to matters specified by the Secretary of State: the 1996 Act, section 210(1) (as amended by section 265(1) of and paragraphs 40 and 43(a) of Schedule 15 to the 2004 Act) and (2). Clearly, however, what is regarded as suitable for discharging the interim duty may be rather different from what is regarded as suitable for discharging the more open-ended duty in section 193(2); but what is suitable for discharging the “full” duty in section 193(2) does not have to be long-life accommodation with securityof tenure such as would arise if the family were allocated the tenancy of a council house under the council’s allocation policy determined in accordance with Part VI of the 1996 Act. It is expressly provided that a person who is secured accommodation under Part VII of the 1996 Act does not become a secure tenant unless the council say so: the 1985 Act, Schedule 1, paragraph 4.”Defining the issue:“21Considering the issue:“38In the Birmingham case, this interpretation has the advantage that the council can accept that a family is homeless even though they can actually get by where they are for a little while longer. The council can begin the hunt for more suitable accommodation for them. Otherwise the council would have to reject the application until the family could not stay there any longer. The likely result would be that the family would have to go into very short-term (even bed and breakfast) accommodation, which is highly unsatisfactory.39It also has the advantage that the family do not have to make repeated applications. If their application is rejected on the ground that it is reasonable for them to stay one more night, they cannot apply again until there is a different factual basis for the application. How are they to judge whether the council will consider that the tipping point has been reached, when this is such an uncertain event?” Determining the issue:“41This then feeds into the duty under section 193. As Lord Hoffmann said in R v Brent London Borough Council, Ex p Awua [1996] AC55, 68:“there is nothing in the Act to say that a local authority cannot take the view that a person can reasonably be expected to continue to occupy accommodation which is temporary . . . the extent to which the accommodation is physically suitable, so that it would be reasonable for a person to continue to occupy it, must be related to the time for which he has been there and is expected to stay.”Those observations were directed to the question of when it ceases to bereasonable for a person to continue to occupy accommodation in the contextof the meaning of “accommodation”, but they apply equally to the point atissue here.42Given that an authority can satisfy their “full” housing duty under section 193(2) by providing temporary accommodation (which must of course be followed by the provision of further accommodation, so long as the section 193(2) duty survives), these observations clearly do not only apply to section 188. They emphasise that accommodation which may be unreasonable for a person to occupy for a long period may be reasonable for him to occupy for a short period. Accordingly, there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long-term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty.”And:“46However, another tool is now available and in our view it is proper for a local authority to decide that it would not be reasonable for a person to continue to occupy the accommodation which is available to him or her, even if it is reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she will have to do so unless the authority take action.47This does not mean that Birmingham were entitled to leave these families where they were indefinitely. Obviously, there would come a point where they could not continue to occupy for another night and the council would have to act immediately. But there is more to it than that. It does not follow that, because that point has not yet been reached, the accommodation is “suitable” for the family within the meaning of section 206(1). There are degrees of suitability. What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term. The council seem to have thought that they could discharge their duty under section 193(2) by putting these families on the waiting list for permanent council accommodation under their Part VI allocation scheme. But the duty to secure that suitable accommodation is available for a homeless family under section 193(2) is quite separate from the allocation of council housing under Part VI. There are many different ways of discharging it, and if a council house is provided, this does not create a secure tenancy unless the council decides that it should. As we have already pointed out, the suitability of a place can be linked to the time that a person is expected tolive there. Suitability for the purpose of section 193(2) does not imply permanence or security of tenure. Accommodation under section 193(2) isanother kind of staging post, along the way to permanent accommodation in either the public or the private sector.48Hence Birmingham were entitled to decide that these families were homeless even though they could stay where they were for a little while. But they were not entitled to leave them there indefinitely. There was bound to come a time when their accommodation could no longer be described as “suitable” in the discharge of the duty under section 193(2).” On the practical effects of the ruling: “49… While the council were entitled in principle to leave the families in their current accommodation for a period notwithstanding that it was accepted that that accommodation “would [not] be reasonable for [them and their families] to continue to occupy” (section 175(3)), it must be a question, which turns on the particular facts, whether, in any particular case, the period was simply too long. However, the basis upon which the applicants in the Birmingham cases argued their claims (and succeeded before Collins J and the Court of Appeal) meant that it was unnecessary to consider the detailed facts of their respective cases. Accordingly, once that line of argument is rejected, there is no longer any basis for a decision in their favour. 50It is right to face up to the practical implications of this conclusion. First, there is the approach to be adopted by a court, when considering the question of whether a local housing authority have left an applicant who occupies “accommodation which would [not] be reasonable for him to continue to occupy” in that accommodation for too long a period. The question is of course primarily one for the authority, and a court should normally be slow to accept that the authority have left an applicant in his unsatisfactory accommodation too long. In a place such as Birmingham, there are many families in unsatisfactory accommodation, severe constraints on budgets and personnel, and a very limited number of satisfactory properties for large families and those with disabilities. It would be wrong to ignore those pressures when deciding whether, in a particular case, an authority had left an applicant in her present accommodation for an unacceptably long period. 51None the less, there will be cases where the court ought to step in and require an authority to offer alternative accommodation, or at least to declare that they are in breach of their duty so long as they fail to do so. While one must take into account the practical realities of the situation in which authorities find themselves, one cannot overlook the fact that Parliament has imposed on them clear duties to the homeless, including those occupying unsuitable accommodation. In some cases, the situation of a particular applicant in her present accommodation may be so bad, or her occupation may have continued for so long, that the court will conclude that enough is enough.”110.7 years later in R (Edwards) v Birmingham [2016] EWHC 173 (Admin) Hickinbottom J was determining a judicial review claim. The claimant, Edwards, who applied under Part 7, had a one bed flat on the 3rd floor of a block with no lift. She made a homeless application when she was a few months pregnant. She was not disabled. She was interviewed and said she did not want interim accommodation but then applied for judicial review asserting that she did. When given hostel accommodation she stayed a few nights then complained and went to live with her mother. When provided with an unsuitable 4th floor flat in a block with no lift she stayed with her mother. Suitable alternative accommodation was eventually provided. Hickinbottom J dismissed the judicial review claim save as to the unsuitable 4th floor flat. He ruled as follows:On the duty to provide interim accommodation: “23Sections 184 and 188 therefore set out the interim duties on a housing authority where it has reason to believe that an applicant may be homeless, namely a duty to make inquiries to ascertain if the applicant is in fact homeless and (if so) in priority need; and, if the authority has reason to believe the applicant may be homeless and in priority need, to provide him and his family with accommodation in the meantime, whilst those inquiries are being pursued. The duties are “interim” in the sense that they are imposed