Nzolameso v City of Westminster 2015


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Ms. Nzolameso applied to Westminster as a homeless person. She was a single mother with health problems and had five children aged between 8 and 14, all of whom were in local schools. Westminster accepted she was owed the 'full' housing duty under s 193(2) and offered her temporary accommodation which it considered suitable near Milton Keynes, some 40 miles away. Ms Nzolameso refused the offer on the grounds that she had lived in Westminster for some years, had many supportive friends there and wished to remain registered with her doctor and for her children to continue at their existing schools. Westminster rejected her grounds concluding, in particular, that since the children were not of GCSE age it was suitable for them to move schools. It then confirmed its decision that the property was suitable and, since she had refused the offer, had discharged its duty towards her. Ms Nzolameso sought a review under s 202 which upheld Westminster's decision. The review letter stated the reviewing officer's conclusion that the accommodation was not unsuitable; the applicant's 'medical and support needs' did not require her to live in Westminster; she had only lived in Westminster since 2008 (5 years); and none of the children were 'currently sitting national exams and could … move schools without their education suffering'. An appeal to the County Court under s 204 was unsuccessful. The Court of Appeal upheld the County Court decision but the Supreme Court allowed Ms. Nzolameso's appeal.

The Supreme Court held, materially, that the duty in s 208 'so far as reasonably practicable' to secure accommodation within the borough 'imports a stronger duty than simply being reasonable': [19]. As Lewison LJ later put it in Alibkhiet, [42], the question is not whether it is reasonable to offer an applicant accommodation in another borough, but whether it is 'reasonably practicable' to offer accommodation in their own borough. If it is not 'reasonably practicable' to secure accommodation within the borough, the authority should try to place the household as close as possible to where they were previously living: Nzolameso, [19]. The Code of Guidance makes the same point, at paragraph 17.51, using materially the same words as in paragraph 49 of the version of the Code then in force, referred to in Nzolameso, [18].

The Supreme Court held that a number of factors are relevant in assessing the suitability of accommodation, but a key component is its suitability to meet the needs of any children in the household: [27]. The local authority is also obliged to have regard to the need to safeguard and promote the welfare of any children in the household under s 11(2) of the Children Act 2004: [27], considered above at paragraph 45.

The Supreme Court also made clear that the authority has a number of public law duties of a procedural nature when discharging its homelessness functions under Part 7: [31-36]:

i) The authority must ask questions and make appropriate inquiries to establish, for example, how practicable it will be for the family to move to another location and whether school places will be available for the children: [36]; see also R (E) v. Islington LBC, [120]. As the Court of Appeal later made clear in Abdikadir, this duty of enquiry requires the authority to make such inquiries as are reasonable in the circumstances, which will be judged on the Wednesbury standard: [51-52], considering R (Balajigari) v Secretary of State for the Home Department (CA) [2019 1 WLR 4647, [70] and R (Bayani) v Royal Borough of Kensington and Chelsea (CA) (1990) 22 HLR 406, p. 415. So, even if an applicant has not specifically raised the issue, the decision-maker 'must take such steps as are reasonable to inform himself of the practicability of an in-borough placement': Abdikadir, [53]. This is the familiar Tameside duty of enquiry, after Lord Diplock's famous dictum in Secretary of State for Education v Tameside [1977] AC 1014, 1065B.

ii) The authority must give reasons for its decision which demonstrate that it has taken relevant factors properly into account, including: the matters set out in the Homelessness Order; that they have 'had regard' to the Code of Guidance as required by s 182; and that they have discharged their duty under s 11 Children Act 2004. A particularly strong duty to give reasons is owed if the authority have departed from statutory guidance ('clear reasons') or if they have departed from their own published policy ('very good reasons'). While the court 'should not adopt an overly technical or 'nit-picking' approach to the reasons, they have to be 'adequate to fulfil their basic function' of enabling a person affected by the decision to know why they have won or lost and to judge whether the decision may be challenged, and to enable a court to determine whether the authority have properly discharged their functions: [31-32]. The Court should not simply infer that the authority has taken into account relevant considerations and has had regard to relevant parts of the statutory guidance: [33-35].

Baroness Hale's instruction at [31-32] not to take 'an overly technical' or 'nit-picking' approach is drawn from the speech of Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames LBC (HL) [2009] 1 WLR 413, [50] directing courts to take a 'benevolent' approach when determining the sufficiency of reasons given on a review under s 202, and to 'not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach'. As Baroness Hale made clear, however, the reasons must be adequate to fulfil their basic function.

The Supreme Court went on to find that Westminster's decision had been unlawful: [36-37]. In summary, the authority had:

i) Failed to carry out reasonable inquiries at the time of the decision, in particular as to the practicability for the family to move out of area and for the children to move schools.

ii) Failed to give adequate reasons to show that the authority had discharged their duty under s 11 of the Children Act.

iii) Failed to give adequate reasons for their decision to show that consideration had been given to providing accommodation in or nearer to the borough. There was no indication of the accommodation available in Westminster and why that had not been offered to Ms. Nzolemso. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible.

The relevance of an authority's resources and the adoption of a placements policy

In Nzolameso the Supreme Court recognised an authority is entitled, when determining whether it is 'reasonably practicable' to accommodate an individual in or near its district, to take into account the resources available to them, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in their area, and the practicalities of procuring accommodation in nearby authorities: [38]. However, the authority should have in place a policy, particularly where there is a shortage of 'in borough' accommodation, which explains the factors which will be taken into account in allocating accommodation either 'in borough', outside but near the borough or further away: [39]. The Code of Guidance, paragraph 17.49, makes the same point. The decision in an individual case may then be taken on the basis of that policy: Nzolameso, [38].

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