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YR, R (On the Application Of) v London Borough of Lambeth (2022) - Suitability of Temporary Accommodation - A Changed Landscape

This is a really important judgment. There is a full transcript here on Baili and a useful summary on is here on Nearly Legal. It shows just how far the Courts and the law on temporary accommodation for homelessness families have evolved since the days of R v Hillingdon LBC ex p Puhlhofer [1986] AC 484, HL and just how great the impact of the Homelessness Reduction Act 2017 giving rise to and a new landscape.

Back in 1986  the Supreme Court (or House of Lords as it then was) held in Puhlhofer held that it was enough for a local authority to offer a homeless applicant something which could be described as accommodation however unsuitable the applicant might consider it to be. Lord Brightman held that this was in issue which Parliament had intended local authorities to decide. He also expressed concern about what he considered to the inappropriate "prolific use of judicial review' in this area. The decision in Puhlhofer was so hard that Parliament had to change the law by importing the word suitable into legislation so that the authority had to provide not just accommodation but suitable accommodation. Nevertheless the Courts have traditionally followed Puhlhofer in finding that it was for the local authority and not the court to decide what was suitable. In recent years this approach has been undermined by three significant introductions to the legal landscape:-

  1. Section 11 of the the Children Act 2004 which places a duty on public bodies to consider the well being of children when carrying out their functions. For details see the section on it in the Statutory Guidance - Working Together to Safeguard Children: July 2018
  2. Section 149 of the Equality Act 2010 which introduced the Public Sector Equality Duty which places a similar duty on public bodies to eliminate discrimination, advance equality and foster good relations for disabled persons. This case did not involve the Public Sector Equality Duty but its impact on the law on suitability of accommodation can be seen from the case of Lomax v Gosport Borough Council [2018]
  3. Section 189A of Housing Act 1996  (as imported by the Homelessness Reduction Act 2017) which requires local authorities to carry out and keep under review a detailed assessment of the housing needs of homeless applicants and to draw up a Personal Housing Plan for the applicant which needs to be agreed and kept under review. For details Section Chapter 11 of the Homelessness Code of Guidance.

The result of these changes is that in 2017 we have the Administrative Court holding that Lambeth had acted unlawfully in providing accommodation for a family as far away as Tilbury and that / because they had failed to take a series of necessary steps before concluding that the accommodation was suitable. The approach taken by Lambeth in this case represents the traditional approach taken by local authorities to providing temporary accommodation which is to find a place without considering the suitability of the accommodation or the objections of the applicant to it in detail. The background to this approach has been that local authorities only have limited housing stock with which to meet a high demand for accommodation. There is an unspoken belief that any disruption experienced by the applicant and their family is the result  of the applicant for becoming homeless in the first place.  Thus,  applicants are expected to find new schools for their children in the area where the local authority places them even if they have to change schools again after that if they have to move again.

The judgment shows that local authorities behaving in this way can expect to have their decisions successfully challenged.  It is therefore essential for local authorities and those assisting people who apply to those authorities are aware of the the new standards by which offers of accommodation and the process surrounding offers being made and reviewed will be judged. Until recently it was common for housing solicitors (me included) to be reluctant to take on cases involving challenges to the suitability of accommodation offered to homeless persons. There was a sense that the challenges would almost certainly fail as the Judge would be likely to uphold the traditional position that suitability was for the council to determine. This led to a situation where homeless applicants could be treated much like farmyard animals and moved from stable to stable without consideration of their needs or those of their families. Cases like this mean that this is no longer the case. It seems much easier to challenge decisions such as the one in this case as local authorities are still struggling to adapt to the new requirements and making elementary errors. It will be interesting to see what happens as they do adapt given that they still face the same shortages of resources and won't be able to respond by magically finding suitable accommodation to offer to applicants.

I must mention the detail and quality of Paul Bowen KC's judgment in this case. The judgment only runs to 10 pages but took me a very long time to read due to the need to stop and get my head around the many issues considered in detail. I think that it will be necessary for me to write a number of additional posts to consider the issues arising this in the case in the detail which they deserve.  It is also worth noting that Joshua Jackson, counsel for the Claimant in this matter was only called to the bar in 2020 which makes a case of this importance and complexity a major achievement for someone still relatively new to the game.

One last observation is that cases such as this show a further change in the law on homelessness is in the sort of cases which are being reported. For many years most of the big cases in homelessness law were about whether a council could refused to accept a duty to an applicant fort instance because they were not in priority need or were intentionally homeless. This has been changing since the Localism Act 2011 allowed local authorities to discharge their longer term duties to homeless persons by offering them private sector accommodation. Before that they could only offer social housing.  There is less pressure on local authorities now to refuse to provide accommodation as they have access private housing stock. The arguments now tend to be about whether the accommodation offered is suitable rather than whether any accommodation should be offered.