Challenging Offers of Accommodation Made To Homeless Persons

Introduction

The issue of when an offer of accommodation is unsuitable and when it can be refused or challenged is a confusing area when has given rise to many legal challenges as well as considerable distress for applicants and their families. Applicants do not want to move into or remain living in accommodation which they consider to be unsuitable them and their families. However, it is very dangerous to refuse offers of accommodation because it will often mean that the council will treat the refusal as unreasonable such that they are entitled to treat their duties towards the application as discharged. This means that the applicant will receive no further offers of accommodation and will face eviction from their temporary accommodation. This has traditionally placed applicants and those advising them in the difficult position of either accepting and living in unsuitable accommodation or running the risk of receiving no accommodation. For more information about this see - The Dangers of Refusing An Offer Of Accommodation For Homelessness Applicants

How To Challenge Offers of Accommodation

If the accommodation has been offered/provided as temporary accommodation pursuant to Section 188 of the Act whilst the application is processed then the challenge is by way of Judicial Review proceedings.

If the accommodation has been offered/provided after the council has accepted a duty to house the applicant under Section 193 of the Act then the challenge is way of a review under Section 202 of the Act and then an appeal under Section 204.

Where To Find The Relevant Legal Provisions / Rules For Challenging Offers of Accommodation

Statute

The main provisions are in Part 7 of the Housing Act 1996.

Section 206 Housing Act 199 - How the duty to house is discharged.

Section 208 Housing Act 1996 - Out of borough placements

Section 189a of Housing Act 1996  - The duty to assess an applicant's housing needs and draw up a Personal Housing Plan 

There is also the Children Act 2004

Section 11 Children Act 2004 - The duty to safeguard the well being of children

Regulations

The Homelessness (Suitability of Accommodation) (England) Order 2003 - prevents bed and breakfast being used for providing temporary accommodation

Statutory Guidance

The Homelessness Code of Guidance For Local Authorities - Chapter 17 Suitability of Temporary Accommodation

Case Law

What Sort of Accommodation?

People still distinguish between offers of Temporary and Permanent Accommodation. There was a time when someone applying for accommodation as a homeless person could expect a two stage process whereby they would be provided with temporary accommodation while their application was processed and the council decided whether they under a duty to house them and then provided with permanent accommodation if a duty was accepted. The permanent accommodation would be a council or housing association tenancy which the applicant could expect to be able to occupy for life as long as they paid the rent and complied with the other terms of the tenancy. That all changed with with the introduction of the Localism Act 2010 which allowed councils to meet their homelessness duty by referring applicants to private landlords. This means that applicants cannot refuse offers of accommodation because they are private sector properties.

Councils do still tend to put people in initial short term temporary accommodation especially where it is needed urgently with a view to offering something more permanent later on if a duty is accepted. However, councils will also often make a very early offer of private sector accommodation as part of their duties under the Homelessness Reduction Act 2017 especially where it appears likely that a duty be accepted. Accommodation offered to an applicant while their application is being processed is still therefore referred to as temporary accommodation. It would be better to call it interim accommodation so as not to give the impression that what comes after temporary accommodation is permanent accommodation.

Interim Accommodation

The Homelessness Code of Guidance For Local Authorities - Chapter 17 Suitability of Temporary Accommodation provides at paragraph 17.7 that accommodation that is suitable for a short period, for example accommodation used to discharge an interim duty pending inquiries under section 188 may not necessarily be suitable for a longer period, for example to discharge a duty under section 193(2) .

Longer Term Accommodation

Challenging Offers of Accommodation Outside The Area of The Council

Section 206 of the Housing Act 1996 provides that a local authority can discharge its housing functions (duties or powers) under Part 7 of the Housing Act 1996 only in the following ways:

  • by securing that suitable accommodation provided by them is available; or
  • by securing that the applicant obtains suitable accommodation from some other person; or
  • by giving the applicant such advice and assistance as will secure that suitable accommodation is available from some other person.

Section 208 of the Act provides that, so far as reasonably practicable, accommodation that is secured shall be in district. However, in Alibkhiet v LB Brent / Adam v Westminster [2018] EWCA Civ 2742 it was held that the council's were entitled to make offers out out of borough accommodation without giving detailed reasons.

  • The Applicant Should Be Allowed Time to view and decide whether to accept an offer of accommodation
    • The Code of Guidance states (see Chapter 15.46-15.48) that applicants should be given a chance to view accommodation before being required to accept it and that applicants should be given a reasonable period to decide whether to accept it or not.https://i0.wp.com/s3-us-west-2.amazonaws.com/secure.notion-static.com/effc36b6-3c42-4322-bbfb-941e4124fa2d/2020-09-20_19-04-44.jpg?w=625&ssl=1

    But See

  • Authorities Are Not Allowed To Treat People As Refusing Offers Where They Have Not Actually Done So.
  • Challenging Suitability Through a Section 202 ReviewThere is no right to a review of the suitability of accommodation secured under Sections 188, 190, 200(1) or 204(1)of the Housing Act 1996. Offers of this kind can only be challenged by way of Judicial ReviewThe suitability of other accommodation will need to be challenged by way of a statutory review Under Section 202 of the Housing Act 1996Where the authority accepts that the accommodation provided is not suitable there is no purpose in a Section 202 Review. The applicant's remember is to seek a Judicial Review of the failure to perform the relevant duty. If the council cannot show that it is doing everything possible to provide suitable accommodation the Administrative Court may grant a mandatory Order.Where the applicant has refused the offer the reviewer will need to consider whether it was suitable at the time of the refusal but where the applicant has accepted the offer and requested a review the reviewer must consider all the circumstances at the date of the review, including any new information or evidence submitted in the course of the review.
  • An Applicant Can At Any Time Request That Authority Reconsiders Its Decision That Accommodation Secured Under Part 7 of the Housing Act 1996 Is SuitableIn R (B) v Redbridge LBC [2019] the Judge held, "The Defendant is under a continuing duty to secure that the accommodation is suitable. The Claimant can ask the Defendant to discharge that duty by satisfying itself that the accommodation continues to be suitable. The Defendant would then have to consider making an updated decision as to suitability. If it agreed to do so and then made an adverse decision then this could be subject to a review request. If it irrationally refused to make an updated decision then that could be subject to challenge. ([49])" This would be a challenge by way of Judicial Review. A decision could then be challenged by way of a review.
  • Suitability General ConsiderationsWhen determining whether a property is suitable local authorities are required to consider the following specific matters:
    • The provisions of the Housing Act 1985 relating to slum clearance and overcrowding
    • The provisions of Parts 1 to 4 of the Housing Act 2004 (the Housing Health and Safety Rating System, houses in multiple occupation and licensing of accommodation)
    • The affordability of the accommodation

    The Location of the Accommodation

    • The public sector equality duty - Section 194 of the the Equality Act 2010
    • The duty to safeguard and promote the welfare of children - Section 11 the Children Act 2004
    • The duty in relation to children under article 2, Schedule 1, Part 2 of the Human Rights Act 1998 to ensure that no person shall be denied the right to education
    • The Homelessness Code of Guidance - notably Chapter 16 and Chapter 17
    • The authority's own homelessness strategy or policies
    • The physical conditions of the accommodation.Chapter 17 of the Code of Guidance states that some from the council should inspect the property to check the condition and that as a minium they should ensure that the property is free from Category 1 hazards but in Firoozmand v Lambeth LBC [2015] it was held that it is not necessary for the council to carry out a full inspection and hazard inspection.
    • Restrictions On The Use of Bed and Breakfast Accommodation as Temporary AccommodationThe Homelessness (Suitability of Accommodation) (England) Order 2003 provides that it is unlawful for a local authority to provide families with children or someone who is pregnant with bed and breakfast accommodation other than in an emergency. The Order provides that even in an emergency the family can only be provided with bed and breakfast accommodation for a maximum of 6 weeks. Bed and breakfast is defined as accommodation which is not self contained and has shared bathroom, toilet or kitchen facilities.Accommodation will not count as bed and breakfast if it is owned a local authority, a private registered provider of social housing or a voluntary organisation.Bed and breakfast is also dealt with at Chapter 17.31 - 17.44 of the Code of Guidance
    • The authority will also need to consider the personal circumstances of the applicant
      • The need for the applicant's household to be able to live together
      • The need for the accommodation to be suitable for all members of the applicant's household
    • Personal conditions giving rise to challenges have included
      • Fear of heightsIn El-Dinnaoui v Westminster City Council (2013) it was held that a decision that a flat on the 16th floor was suitable for a woman with a fear of heights was perverse.
      • The property reminded the applicant of prison cellIn Poshteh v Royal Borough of Kensington and Chelsea 2017 the applicant had a panic attack when viewing the property as she said it reminded her of the prison cell she had occupied in Iran. The Supreme Court held that the reviewing officer was entitled to look beyond this initial reaction and consider that accommodaiton would be suitale for her in the longer term.
      • Whether bricks and mortar was suitable for travellersIn Sheridan and Others v Basildon Borough Council 2012 - a challenge that offering bricks and mortar to travellers was dismissed by the Court of Appeal
      • Affordability
      • When an applicant refuses an offer or suitable accommodation the council can treat their duties as discharged.See ‣
  • Its Not Enough To Say That The Authority Can't Find Suitable AccommodationIn R Nipa Begum v Tower Hamlets London Borough Council [2000] the council argued that it was doing its best to find wheelchair accessible accommodation but no suitable accommodation was available. It was held that the council's duties could not be deferred and that there was a line below which the standard of even temporary accommodation could not fallButIn Ali v Birmingham (2009) the Supreme Court held that accommodation which would be unsuitable for more than a short time may be suitable as temporary accommodation. In that case the applicants were living at home in conditions which the council accepted were sufficient for them to be treated as homeless but decided that they could be expected to stay there for a short time.

Suitability Checklists

Suitability of Accommodation Checklist

Offers of Private Rent Accommodation Made To Homeless Persons

Other Relevant Issues