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.

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

  1. DHK

    I find various aspects of this case interesting and at the same time totally absurd.

    “Ms YR objected to the property, pointing out the time and cost of travel to central London, the disruption to the children’s education, the distance from her support network with her infant child, and the relative difficulty of obtaining employment as a Spanish speaker in the area.”

    I am sure many people would “object” at the the time and cost of travel to central London but we get forced out of London in order to raise a family because we simply can’t afford a property in London.

    As for the “support network” the claimant’s support network are in the Dominican Republic, yet somehow they managed to come to a much colder country and get by sofa surfing with 7 kids at least half of which are bar stewards. i.e born out of wedlock according to the ages of the children.

    The State provides education around the country, I brought in an immigrant child and got no support for the English Language and barely Action+ which is available for any child before special needs which they would not qualify for. I do not see any Ukrainians complaining about whatever school is available, they are simply grateful to be accommodated. Where education needs to be taken into account LEGALLY is when a child has special needs, such as Autism or ADHD, but if the claimant can manage on a friends sofa then the she clearly did not need it.

    “After becoming homeless in December 2021, she had been staying with a friend,”

    Becoming homeless, how did she get here, what is her immigration status and that of the shared husband. Is her husband also married to her sister, is that legal in the Dominican Republic or are we saying they are seeking asylum because her own country has the same laws as our own in outlawing polygamy?

    “Ms YR went to the accommodation in August but by September (after the issue of the Judicial Review) was staying with her friend in Lambeth to enable the children to attend school. This was not viable in anything other than the very short term.”

    You are either homeless or you are not, if they had the ability to stay with a friend and not use the property provided then they should forfeit the home and not be allowed to claim being homeless again for 12 months. Then maybe they would appreciate what they are given

    “The Claimant is a homeless single mother responsible for the care of seven children whose ages range between 4 months and 16 years.

    How come she is suddenly a single mother when she has this hybrid family that is probably polygamist and her most recent sprog was spat out 6 months ago? Could it be that it is simply convenient for the purposes of benefits to be a single mother, where is the father in all this, where does he work, where does he live, where is his tenancy agreement? Or did they fake a domestic violence situation just to get housing and they can bring him back in later or if YR has another sister he can start having kids with them!

    “A, her youngest child, is 6 months old; R is 4; Y is 7; B is 9; H is 12; J is 12; and S is 16. The Claimant is the mother of three of the children, J, B and A; the other four (S, H, Y and R) are children by the Claimant’s husband and the Claimant’s sister, making the seven children both half-siblings and cousins. Until December 2021 the children were being cared for by the Claimant’s sister in the Dominican Republic. The Claimant has power of attorney to make decisions on behalf of her sister’s children.”

    Does this case set any kind of legal precedent for a new way to obtain mansions, just share your husband with your sister, to realise the absurdity of this one needs examine the combination, both sisters were pregnant with H&J at the same time 12 years ago and it is clear that he has been “having breeding relations” with them both the whole time!

    A is 6 months old; Claimant and Husband
    R is 4; Sister and Husband
    Y is 7; Sister and Husband
    B is 9; Claimant and Husband
    H is 12;Sister and Husband
    J is 12; Claimant and Husband
    S is 16. Sister and Husband

    The Judgement does not say which are boys and which are girls, when I grew up I shared a bedroom with two siblings, my understanding is that the baby can be kept in their bedroom and boys can share with boys while girls with girls, that is still 3 bedrooms between 6 children. I have seen a Council provide a 3 bed flat for a catholic family with 8 children, 5 boys all on bunks in one room.

    To be honest I think this is a matter for Social Services, it is morally wrong to have this “family” arrangement.

    I also think it is BAD PARENTING to have brought these children here without them having a proper secure home and their failure to secure private accommodation (if they even tried) is a further failure of parenting.

    If the man is a polygamist, is this yet another cultural diversity we must now accommodate, what is the legal precedent for that?.

    I can only hope that Lambeth take the matter to The Appeal Court and even the Supreme Court, meanwhile the Government should consider tightening up these “duties” so that diagnosed special needs are catered for, but not abuse of the system.

    The legal ramifications seem huge:

    “In addition, the local authority must demonstrate that it has applied its placement policy properly, THAT REQUIRES A REASONED DECISION, EVEN IF NOT PRESCRIBED BY STATUTE. The Local Authority must also be able to show that it has fulfilled its duty to make further inquiries, and the inquires needed should be evident from the s.189A assessment. They were not here.

    Is the Court really saying that something not prescribed by statute is unlawful?

    “And the personal housing plan was unlawful because itself based upon a flawed and unlawful housing needs assessment.

    On (2) – the review of needs under s.189A(2), this was also unlawful. The review had been conducted in September 2022. There was no address to whether there was accommodation available closer to Lambeth at the date of the review, as “required by s 189A(9) and paragraph 17.8 of the Code of Guidance”.

    The review was also unlawful for a further failure to carry out the duty of enquiry.”

    All these dominoes fall but in the real world circumstances, there is no accommodation, a Council can’t magic up property or availability, there is no local connection because their local connection is in the Dominican Republic and you can be sure that Sister number two will be on her way soon, or is she the “friend” with whom they have been sofa surfing with 7 kids.

    Has this woman been informed of the benefits cap, that it is unlikely she will be able to claim her rent never mind all the other benefits?

    “On (3), the s.188(1) decision that the offered property was suitable was also unlawful.

    Firstly, Lambeth’s argument that a s.188(1) decision was separate to the s.189A assessment duties was not accepted.”

    The simple fact is that in the real world there are flaws, life is not perfect. If you are homeless and have ever suffered real street homelessness you will know you would accept anything. Even being put in a block where your nearest 10 neighbours would be at home in one flew over the cuckoos nest. Where some of them attack anyone female and others try to set fire to the block.

    I am not saying they should have to put up with that, they have children, but they were offered what most families would consider a HUGE house and they themselves said they would be happy with 3 bedrooms.

    Perhaps Lambeth should ask if he has a free block within Buckingham Palace now that it is not going to be in use so much!

    “Lambeth had wholly failed to consider the eldest child’s entry into year 11 at school, despite its policy, and any assumption in the review that the child might not be entering year 11 was a fundamental error of fact.

    THE SIXTEEN YEAR OLD (GOING INTO YEAR 11) WAS NOT HER CHILD, YR MAY HAVE POWER OF ATTORNEY WHILE THEY TRY TO GET A FREE HOME IN THE UK BUT IT IS NOT HER CHILD, THEREFORE THE HOUSING DUTY FOR THE CHILD FAILS AND ALL THE REST OF THE DOMINOES.

    SOCIAL SERVICES SHOULD TAKE ALL THE CHILDREN OF HER SISTER INTO CARE, THEN WATCH AND SEE HOW THEY ARE ABLE TO SUDDENLY FIND PRIVATE HOUSING WITH NO RECOURSE TO PUBLIC FUNDS.

    OR NOW THAT SHE IS A SINGLE MOTHER, IF THE FATHER LIVES NEAR THE SCHOOL MAYBE HE CAN TAKE HIM.

    What is irrational is that a Council is expected to juggle the ages of a “merged” family of polygamists into the school age system when the family were quite happy to come all the way from the Dominican Republic and “rough it”, it seems to me that the Law should say that if a parent is prepared to put their kids through such a move without consideration then they should lose the rights afforded to a typical family.. I say this as someone who took on another man’s child, tutored them and fought the school appeals process when they were declined a place (an appeal I won). The proverbial term of taking the urine springs to mind.

    I have seen Social Services come to a decision that a mother is not a fit parent, put their children into care (one was doing her GCSE’s” and make her homeless. It does happen, usually when drugs or alcohol are involved but child endangerment is also grounds”

    “On (5) – the decision that the property was suitable was irrational

    In view of the conclusions I have already reached, it also follows that the Council acted irrationally in deciding that the Property was ‘suitable accommodation’ for the purposes of s 188(1), taken with s 206 and s 208, read in the light of s 11(2) of the Children Act 2004, based as it was on inadequate and inaccurate information.”

    As I said, the 16 year old is not her child, social services can put the child into care or with foster parents near their current school, who knows maybe the “friend” will take care of them, they have had 7 of them. Think about it, how many people can put up 9 people, what was the address, is that a social home, do they have kids, these are the “social reports” the Lambeth needs to take out.

    This whole case is a FARCE it makes a mockery of our beloved legal system and such a daft decision opens all kinds of legal doors, the matter should be appealed by Lambeth immediately and the Government should add amendments and exceptions to prevent such abuse.

    Reply
  2. William Flack Post author

    I have had serious misgivings about approving this comment so that it appears on the blog. This is because it includes a number of comments about the applicant in this case and her family which are offensive. However, as the case is anonymised and the applicant and her family cannot be identified and because the writer has taken some time to set out his/her views I have decided to approve it.

    I disagree with very much of what has been said in the comment. If I have time I will try and set out a response in due course. I would be grateful if anyone else could leave a comment in response and/or let me know if they agree with my decision to publish this comment.

    Reply

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