Homelessness duties for local authorities


15 December 2021

There have been two recent high profile Court of Appeal cases that have concerned how a local authority should approach their homelessness duties. The first case was Hajjaj v City of Westminster [2021] EWCA CIV 1688 with judgement being handed down on 12 November 2021.

Facts

The case was a joined appeal concerning the use of private rented sector accommodation to discharge a local authority’s duty under S193(2) of the Housing Act 1996. Following the Localism Act 2011, local authorities can unilaterally discharge their obligation by offering suitable accommodation in the private rented sector.

The main question in both appeals was whether the offer was suitable for the purposes of S193 (7F) of the 1996 Act. In July 2018, the appellant applied to Westminster Council for assistance and the Council accepted that a duty was owed. In April 2019, an offer was made for private rented accommodation in Dartford; it was a ground floor, two bedroom flat with a respected landlord. The offer continued stating why Westminster thought the property was suitable, citing the size, affordability and condition of it. The property was viewed and the offer refused.

The property was first refused as Mr Hajjaj stated that the amenities such as school, shops and doctor's surgery were too far away. He again refused the property following a second visit as he stated that he was now a carer but he did not provide much detail as to when and how these caring responsibilities came about or how they operated on a daily basis. On 15 May 2019, the Council sent a letter and ended their duty. A review was requested in March 2020 questioning the suitability of the offer.

A County Court Judge dismissed Mr Hajjij’s appeal and found that the offer was suitable. However, the Court of Appeal came to a different conclusion and determined that Westminster had assumed the property was suitable rather than having evidence of suitability, the assumption of auditability appeared to be based on the fact that the landlord was reputable but no physical evidence of the condition was actually relied upon.

Law

Section 193 (7F) of the 1996 Act provides that a private rented sector offer should not be made unless the offer is suitable and subsection (8) does not apply.

Local authorities need to consider the 10 criteria in the Homelessness (Suitability of Accommodation) (England) Order 2012 part 3, the criteria concern the physical condition of the property, the condition of electrical equipment, the fire safety precautions, the carbon monoxide protection and others. The Judge held that the local authority must be satisfied that each of the criteria are satisfied and none of the bars apply. The local authority must be satisfied “on the basis of evidence rather than assumption”. It is for the local authority to satisfy themselves the criteria are satisfied it is not for the applicant to suggest that there are problems, the burden is placed firmly on the authority.

The second case was Ciftci v The Mayor and Burgesses of London Borough of Haringey [2021] EWCA CIV 1772 with judgment being handed down on 26 November 2021. This case concerned the duties that the local authority have to comply with when they believe a person was intentionally homeless because they deliberately and not in good faith ceased to occupy their accommodation.

Facts

The appellant in this case is a disabled lone parent, she had been renting a suitable and affordable house in Switzerland between 2007 to 2019 and she had then arranged for someone to take over her tenancy and she moved to the UK. Her sister had found her a job and a place to stay with a family friend but it appears that Ms Ciftci did not investigate the job or accommodation and merely trusted her sister. The job was short lived, due to her disability, and the place to stay was a sofa bed that she shared with her son and her dog. She then sought homelessness assistance on the basis that she had been struggling with her disability, her mental health was deteriorating and she had not wanted to approach Swiss social services in case they removed her child.

The application was rejected on the basis that the account was unsubstantiated and she was aware that moving into a friend’s house was always going to be temporary and precarious, there was no basis to her concern that her child would be removed and the Swiss social security system is equal to if not superior to the UK’s.

The applicant appealed the finding made by the housing officer on the basis that insufficient enquiries had been made. However, the Judge ultimately rejected the appeal.

Law

Section 191 Housing Act 1996 defines becoming intentionally homeless as “if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”

The local authority before determining if someone has made themselves intentionally homeless must make such enquiries as are necessary to satisfy themselves whether any duty is owed. If the applicant is unhappy with the decision they can seek a review.

In considering the future prospects, the applicant must have a belief in a specific state of affairs that would continue based on genuine investigation rather than a mere aspiration.

The duty on the local authority is not a duty to make all possible enquiries, it is a duty to make necessary enquiries that are reasonable to make. The bar to overrule the authority is high, it has to be a decision that no other local authority could have made and courts are generally reluctant to overrule these decisions.

Comment

There multiple takeaways from these cases about how local authorities should approach their duties in relation to homelessness. From the case of Hajjij the main takeaway is that the approach to the suitability criteria must be evidence based. It does not need to be first hand, it is enough for a report to be produced by a third party landlord for example, but just because a landlord is reputable that is not sufficient to discharge the duty.

The second takeaway is that where the local authority is dealing with a new landlord or one with a “patchy record of compliance” it may be that the local authority has to carry out a first hand investigation of the property. Unfortunately, the Judge did not elaborate on what “patchy” meant but as long as a sensible approach is adopted it will likely be sufficient.

From the case of Ciftci the main takeaway is that there is not some onerous obligation that requires extensive investigation or every stone to be turned over. Of course, it will be a question of degree and reasonableness but judges will be reluctant to overturn decisions unless the officer has acted completely unreasonably. This should reassure local authorities slightly but it is important that reasonable endeavours are made at the outset to avoid disputes down the line.

If you have any questions about this article or want to find out how Birketts can help you with your social housing matters, please contact Clive Adams or another member of the Social Housing Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2021.

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