England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE COLLINS: The Applicant, Fitzgerald Ojuri, is a single parent who looks after his three children, two twin boys aged six and a daughter aged ten. He had been made homeless in, I think, 1996 and the London Borough of Newham had accepted the full housing duty under the provisions of the Act then in force, the Housing Act 1985. They purported to discharge that duty by offering accommodation which the Applicant rejected as being unsuitable. Newham took the view that they need not offer any alternative because the accommodation was suitable.

2. The Applicant sought judicial review of that decision. He obtained an internal appeal within the Council. That appeal failed and he sought judicial review of that appeal. Meanwhile he was housed temporarily at 49 Alexander Street E16, which is a house managed by a housing authority on behalf of the Council. It was near Ravenscroft Junior School which his children were attending. There was no Interim Order to protect his occupation pending the judicial review. Such occupation was only guaranteed until after the hearing of his appeal by the Council. He was the subject of eviction proceedings and the bailiffs were instructed. For some reason, which I have not been given, it took some nine months or so for the bailiffs to act. By coincidence, it is said, they acted on the very day that his judicial review hearing came before this Court, namely 24th March of this year. He was then evicted.

3. As a result of advice given he applied the next day, that is 25th March, for housing on the basis that he had been made homeless and was in priority need. The Council accepted, as perhaps was inevitable, that the duty under section 188 of the 1996 Housing Act arose. That duty is an interim duty to accommodate in case of apparent priority need. Section 188(1) reads:

4. He was, in fact, able to stay with some friends for a couple of days. On 27th March he went back to the Council in order to discover what accommodation he was to be provided with and he was placed in bed and breakfast accommodation at the Shore House Hotel in Hackney. This was a considerable distance from the children's school and the accommodation itself was, he submits, wholly unsuitable. These proceedings attack the decision of the Council made on 27th March and it is said that the accommodation that was provided was not suitable accommodation within the terms of the duty laid upon the Council by section 188. I have read section 188(1) and that simply provides that there shall be a duty to secure that accommodation is available. If one goes to section 206 of the Act one sees that the local housing authority may discharge their housing functions under this Part only in the following ways:

5. The point is that accommodation provided under section 188 must be suitable accommodation.

6. Further, by section 208 of the Act it is provided by subsection (1):

7. They then have certain obligations to give notice to the local housing authority if they house out of their district.

8. Accordingly it is said that this accommodation fails to meet the appropriate statutory provisions, first, because it is not suitable and, secondly, because it is outside the district, although, of course, the two shade into each other. The local housing authority also has a duty by section 182 to have regard to guidance given by the Secretary of State. The Secretary of State has given guidance. It is contained in a Code of Guidance which has been revised on 7th March 1997. That, I think, is the latest update. So far as material, that Code of Guidance provides, by paragraph 10.10, thatthe target time for carrying out the interim duty (that is to say the time during which an Applicant should be housed in interim accommodation) should be a maximum of 30 days, unless there are exceptional circumstances. Paragraph 20.1 deals with the interim duty to accommodate. It sets out what the local authority should have regard to and, in particular, in 20.2 says:

9. Paragraph 21.15 states:

10. Although it is not specifically stated, it is self-evident that account should be taken of the need for children to reach the school in which they are pupils.

11. Finally at paragraph 21.28K there is a specific reference to bed and breakfast which states:

12. Paragraph 21.29 goes on:

13. The Applicant says that when he attended on 27th March he was effectively given no choice. What was said to be available was the bed and breakfast accommodation in Shore House and he was offered it on a take it or leave it basis. In paragraph 12 of his third affidavit he says this:

14. Then he describes how he took a friend to the Council who could give evidence if necessary.

15. That paragraph, and his account of the matter, has not been disputed. There is no affidavit on behalf of the Council by either Mrs Brown or the gentlemen who made the offer, who in fact, I am told, is a Moses Nyarnu (?), who is not from the Francophone part of Africa but comes from Ghana.

16. In the course of the hearing, really I think as a result of questions raised by me, Mr Matthias, on behalf of the Council, produced the application which Mr Ojuri had made on 25th March. That has a sheet at the end for comments and details to be set out by interviewing officers, or officers who took a particular action in relation to the application. We see that on 25th March Mr Ojuri spoke to a Mr Clark, who had been dealing with the matters which formed the subject of the judicial review, and Mr Clark told Mr Ojuri that he would not deal with the matter further, but he does record that Mr Ojuri then, and I quote:

17. We find Miss Brown's notes on 27th March. Those set out the history and deal with the schooling. They also indicate that she was aware that a request had been made for a letter from a doctor. What is not recorded by the Council anywhere is that both the Applicant, and at least some of the children, suffered from asthma and that is said to be, and indeed clearly is, a material consideration particularly when one has to consider the journey to school. The next entry on the form is an entry by Mr Nyarnu which reads laconically "Agree indefinite B and B."

18. It seems to me that what has been produced by the Council is, in any event, wholly consistent with the account given by the Applicant, which I have already read, in paragraph 12 of his third affidavit.

19. The main affidavit in reply has been sworn by Mr Paul Clark, who is the Appeals Officer for the Housing Department of Newham. He asserts that:

20. He then gives figures, which applied when he made his affidavit, showing that there were 183 families with children in bed and breakfast, 54 inside and 129 outside the borough. Sufficient leasehold accommodation was not available and one of the problems was that other boroughs had placed a considerable number of their homeless in Newham. It seems the major villain (if that is the right word) was Westminster. He says:

21. It is a sad state of affairs, indeed, that so many homeless families are in accommodation which the Secretary of State regards, in his guidance, as unsuitable, but there is, and I must recognise that there is, a major problem in London in general and in Newham in particular, in finding appropriate accommodation to meet the needs of those who find themselves homeless.

22. The 1996 Act provided a change of regime. Before that this Court had to deal with a considerable number of judicial review applications. The regime now is that most decisions made within the terms of Part VII of the 1996 Act, which deals with homelessness, are to be the subject of a review by the Council and a right of appeal on law to the County Court. For some reason, the duty under section 188 is not included among those decisions which are set out in section 202 of the Act to be, the subject of review. By section 202(1)(f) there is included:

23. Neither (b) nor (e) deals with the section 188 duty. Accordingly this is one of those rare cases now which find their way to this Court by judicial review rather than to the County Court.

24. The main submission made by Mr Luba is that the 1996 Act, in providing this new regime, also provided that interim accommodation had to be suitable and that prima facie housing authorities should not discharge their functions by requiring that the homeless were housed outside their borough. It was, and this is reflected in the guidance, an attempt to avoid what has been described as "dumping" of families outside a particular borough or District, and also to avoid the growing numbers of homeless families who were being accommodated often for substantial periods in bed and breakfast accommodation.

25. The problem here is that Newham has indicated, and I entirely accept, that it simply does not have the accommodation. Mr Luba points out that Newham had had when the decision was made in March, over 18 months since the passing of the 1996 Act to try to accommodate the new approach. It was no good, submits Mr Luba, for Newham to wring its hands and say, "There really is nothing that we can do. This is the situation that we face and we simply have to make the best of what there is and what there is is only bed and breakfast, and often only bed and breakfast outside the borough."

26. It seems to me that the important aspect is the approach that must be adopted. Newham must have regard to the individual circumstances of the Applicant and his family. It has to apply its mind to what is suitable for that family. What happened here was that they were offered what was available and what was available happened to be, when the application was made, merely this bed and breakfast. It seems to me implicit in the approach that has been adopted by the local authority, in as much as it indicates that the Applicant and his family were lucky to get this rather good bed and breakfast accommodation, that they might well have found themselves much further away and in much worse bed and breakfast accommodation.

27. What did not happen was the assessment that, in my judgment, is required by the Act. Full and proper details should have been taken and full consideration should have been given to all the relevant factors which went to suitability. It may be that if they had been the same result would have been reached because of the unavailability of any more suitable accommodation. What is said here, however, is that there was somewhere else available, namely 49 Alexander Road available. Mr Ojuri and his family had just been evicted from it. No one else had come into it. It would have been the easiest thing in the world for the Council to have got in touch with the housing association and said, 'Wait, we have a fresh application. The Ojuris can stay pending consideration of what our duty is under that application.'.

28. Mr Luba submits that if I am satisfied, as I am, on the material before me, that the procedure was not correctly gone through, then he is entitled to relief. Not so, submits Mr Matthias, because what I have to consider is whether the accommodation that was provided was suitable accommodation. If it was then the Council has discharged its duty under section 188 and it does not matter that the accommodation was decided upon in the wrong way. It is the result that matters; it is whether the accommodation is suitable.

29. Let me then consider what is the correct approach to and the appropriate test of suitability. I start with the decision of the House of Lords in the well-known case of Puhlhofer v Hillingdon London Borough [1986] AC 104. At page 517C Lord Brightman said this (referring to the 1977 Act which was the Act that took over from the relevant provisions of the National Assistance Act 1948 and specifically was to deal with housing the homeless):

30. Pausing there, the same applies to the 1996 Act. It was passed in July 1996. It came into force on 1st January 1997 and, as is well-known, there had been constraints on councils which effectively prevented them from achieving, not only any dramatic increase but any increase in their available housing stock. Going back to Lord Brightman, he continues:

31. In the recent case of Awua v London Borough of Brent [1996] AC 35 Lord Hoffman, with whom on this aspect the other members of the House agreed, adopted the same approach to the nature of accommodation in performance of the full duty under the Housing Act.

32. The question of suitability has come before the Court on a number of occasions, but, in particular, in R v London Borough of Brent ex parte Omar 23 HLR page 446, a decision of Henry J. That was a case where a refugee from Somalia was offered what frankly sounds like the most appalling dungeon in the basement of a block which was riddled with damp. The GP's letter in support of her action stated that she was on the verge of a nervous breakdown and was quite seriously threatening suicide rather than going to live in the accommodation. It is perhaps hardly surprising, in the light of her history, that she would react to such accommodation in the way that she did.

33. One of the surprising things is that the Council felt it right to argue that it was suitable. But I note that counsel, on its behalf, argued that notwithstanding that the word "suitable" had been specifically inserted before accommodation in the Act following the decision in Puhlhofer, that did not make any difference and that the decision of the House of Lords in Puhlhofer, which some had taken to indicate that anything better than Diogenes' barrel, is sufficient to constitute accommodation, still applied. Not so said Henry J and inevitably, but he did consider what suitable meant in the context. At 457 he said this:

34. That is, of course, wholly consistent with the approach in the guidance, to which I have already referred. He goes on a little lower down the page:

35. Then at the end of his judgment on 459 he says this:

36. Mr Matthias relied on this authority to submit that the standard need not be a high standard and that it is perfectly proper for the authority to take into account the problems that it has in finding any accommodation for the homeless, effectively that only bed and breakfast was available, and also to take into account the fact that this was to be interim accommodation only. That is a factor which can mean that it is perhaps less suitable, provided it is still suitable, than might have to be the case if the accommodation were to be permanent.

37. That those matters can be taken into account in determining suitability is not challenged by Mr Luba, but he submits, and rightly, that there is a minimum and that one must look at the needs and circumstances of the particular family and decide what is suitable for them, and there will be a line to be drawn below which the standard of the accommodation cannot fall. Mr Luba submits that that line has been crossed in the circumstances of this case. Mr Matthias disputes that.

38. So far as that aspect of suitability is concerned, my function is to apply a Wednesbury test. It is not for me to decide for myself on suitability, that is the function of the local authority. I can only interfere if I am satisfied that the accommodation, which has been provided, is such that no reasonable person could regard it as suitable for this family in their circumstances.

39. Complaints were immediately made by Mr Ojuri about the accommodation itself. He has the top floor, namely the second floor of the premises which consist of two adjacent town houses knocked together. There are two self-contained rooms, one has cooking facilities in it, the other has a kitchen and shower annexed to it. The kitchen and shower, and indeed the WC which is at the other end of the landing, cannot be locked off in the sense that the main door leading into them is not one which can be locked from the outside. Obviously if someone is using the lavatory or the shower he or she can preserve privacy, although that was not the case when Mr Ojuri moved in and one of the complaints he made was the lack of such a lock. That was, it is fair to say, dealt with when the complaint was made.

40. He complained that the children were finding it difficult because, for example, the room they slept in had a yale lock which shut when they went out of the door and the little ones could not reach it in order to reopen the door if they went out to the lavatory. Indeed they could not reach the lock to open it to get out in order to go to the lavatory. There were concerns that his daughter had reached an age when she was embarrassed to have to share with her brothers. Equally at a later stage she became upset and concerned about sleeping on her own when it was suggested that the sleeping arrangements should be rearranged, and latterly Mr Ojuri and his family have all been sleeping in one of the two rooms.

41. It is quite clear that these premises are by no means ideal. However, as bed and breakfast accommodation goes it is equally clear that they are at the upper end of the scale. Cooking facilities are provided. There is no question of the family being made to leave the premises between or during the daytime. Mr Matthias submits, looking at the guidance given in the Code, that the main reason for indicating that bed and breakfast is not suitable for families with children is because of the problems about cooking and the problems of children having to be out on the streets during the daytime and having nowhere to play in the premises. Mr Matthias put it that this was the equivalent of a flat, except that it did not have a front door. Although one sees, to some degree, the force of that, the fact is, of course, that it is not because other occupants of the building are able to and, although apparently discouraged from doing so, to go up to use the facilities upstairs from time to time. So that is the state of the premises.

42. The other major complaint was the distance of the premises from the children's school. There has been a lot of evidence about that. The Applicant has tried different means of getting to school. He was advised originally that he could walk across Victoria Park and then get public transport. That the Council appear to have considered to be impractical. Incidentally, as Mr Luba says, it supports the suggestion that they really did not have proper regard to the family's needs when deciding on this bed and breakfast in the first place.

43. However, now they say that he can take a bus to Hackney Central Station, a train to Canning Town and a bus to the school and that that should not take more than an hour and a quarter, or thereabouts. Mr Ojuri says he has tried it. He has tried various alternatives and try as he will, he is unable to get the children to school regularly on time. It takes longer than the hour and a quarter; it usually takes a good hour and a half and it can take longer if there are problems with transport. I do not really have the material to resolve that dispute; suffice it to say that it is clear to me that the journey is a substantial one, particularly for young children.

44. A suggestion that was at one time apparently made that they could walk seems to me to be, with great respect, totally impractical. It is fair to say that that was not a suggestion that was made by the Council. Apparently it arose in the course of an interlocutory hearing when an injunction was sought. The fact of the matter is that there is ample evidence before me that their schooling is suffering. There are reports from the headmaster and there are complaints about lateness.

45. One thing that is clear to me is that Mr Ojuri is very concerned about his children and it seems to me that it would be absurd to suggest, and in fairness it is not being suggested, that he has in any way been using the children as pawns in order to try to obtain what he wants. I am sure that Mr Ojuri would do no such thing and has very much at heart his children's welfare and his concern that their schooling progress properly. It seems to me, in those circumstances that the reality is that these premises are sufficiently far from school as to be having an adverse effect upon the children's progress at school, albeit it may be that the total journey during the course of the day is somewhere between two and a half and three hours. In addition to that, of course, Mr Ojuri has to pay in order to accompany them to school.

46. There is again some dispute about the amount that he would have to pay, but the Council suggest that the best course would be for him to buy the necessary weekly bus passes and they would cost him a total of some £28 per week. That is a considerable slice out of an income of £97 a week, Mr Ojuri not being able to work at the moment, partly, of course, because of the three children that he has to look after.

47. I have to decide therefore whether, first of all, that accommodation is to be regarded as so clearly not suitable that no reasonable person could have regarded it as suitable. I am bound to say that if the decision had been mine to make I would not have regarded it as suitable accommodation, not because of the state of the premises but because of the problems with the school. However, the decision is not for me, the decision is for the Council. It has meant that the children have a burden of having to cover some distance to school. It has meant that the father has had to pay a substantial part of his income in order to take them to school.

48. Nevertheless, as Mr Clark points out, there are other families who do have to make journeys to school, not, I suspect, as great as this normally, or if they are such as this then normally some sort of busing arrangement can be made. One of the problems of housing them outside the district is that there are problems in that regard. It seems to me that the decision is very finely balanced. But having regard to the approach that I have to adopt, again I go to Puhlhofer and the words of Lord Brightman at page 518 where he says this:

49. I am bound to say that I regard this as falling into the just conceivable and on that ground, with some reluctance, I am not prepared to decide that the local authority acted perversely in determining that this accommodation was, in all the circumstances, unsuitable. However, that is not the end of the case.

50. I come back to the main argument that Mr Luba presented, which was that the way in which the decision was made was flawed. It did not follow the correct path. I have already indicated that I accept that the evidence is such that it is clear that the local authority, and I can understand why, did not consider specifically, as it should have done, the needs of this particular family and try to marry those needs to whatever might have been available. It may be that it would have been necessary to defer a decision for a day or two and put them up for a day or two somewhere; it may be that they should have made more efforts to find somewhere that was clearly more suitable than the accommodation that they did find; it may be that they could and indeed should have considered the obvious possibilities of 49 Alexander Road; it may be that at the end of the day they would have been forced back to the accommodation that was, in fact, offered. But they did not, in my judgment, go through the correct procedure.

51. That being so, the Applicant has lost the chance of obtaining accommodation which might have been much more suitable for his needs and it seems to me that, in those circumstances, he is entitled to have his application considered on a proper basis. It is not good enough to say, "he has something that is suitable in the sense that it cannot be regarded by this Court as being manifestly unsuitable,therefore the local authority has complied with its obligations." It seems to me that what happened here was essentially a procedural irregularity, that the approach to the decision making was flawed, and that being so the decision itself was a flawed decision whether or not it can be defended as being a suitable accommodation. For that reason I have decided that in principle the Applicant ought to be entitled to relief.

52. I now have to consider the question of the exercise of discretion in the light of the position as it now is. It is very unfortunate that the Applicant has had to remain in his accommodation for as long as he has. It is said that the reason for that is that the Council has been investigating and making detailed inquiries into whether the homelessness was intentional. Once the judicial review proceedings were over, and they went against the Applicant, it was clear that prima facie his homelessness was intentional because if it was unreasonable for him to have refused the accommodation that was offered in the discharge of the full housing duty, then he clearly, on the face of it, would have been intentionally homeless.

53. However the Council has apparently taken the view that it ought to investigate the matter in depth notwithstanding this finding, and that is no doubt something which the Applicant is most grateful to hear. I am told that the stage has been reached when, subject to an interview with the Applicant, the decision is imminent, that is to say within a matter of days rather than weeks, provided, of course, the Applicant co-operates in the interview. If he does not no doubt one can forecast, pretty easily, what the decision is going to be. Furthermore I am told by Mr Matthias, on clear instructions, that come what may the Applicant will not be required to remain in this accommodation beyond the end of August. Furthermore this school term has only a short time to run.

54. We are approaching school holidays and so the main reason why the premises are at the lower end of suitability, on my findings, namely the distance from school, will disappear. In all those circumstances, submits Mr Matthias, it would be wrong to grant relief bearing in mind my knowledge of the housing state in Newham. It struck me that in reality an Applicant, on the approach that Newham was, in my judgment, wrongly making, was effectively going to be lucky or unlucky depending on the chances of what was available at the time he made his application. There is a clear degree of fluidity in housing stock available for the homeless.

55. Mr Luba submits that now that the local authority has all the necessary information the Applicant is entitled to have his case considered in the proper way, and if by chance there is something better available, to get it. It may be that there will be nothing available but at least he should not be deprived of that opportunity, an opportunity of which he had been deprived by the failure of the authority to approach their task in a proper manner. I am persuaded that that is right and it seems to me that I should not refuse relief on the basis that Mr Matthias suggests.

56. I make it clear that all I can do is direct that the authority reconsider the matter on the proper basis. That does not mean, and Mr Ojuri must not think it does mean, that he will necessarily find himself being moved to accommodation which is more suitable for his needs. There simply may not be any such accommodation available. But, as I say, it seems to me that Mr Ojuri is entitled to have his case considered on the proper basis.

57. Accordingly I propose to quash the decision and direct the Council to Act. I do not think there is any need for a direction. No doubt the Council will then act in accordance with what I have indicated. Mr Luba that is right, is it not?

58. MR LUBA: That is right. As my Lord well knows in these matters the usual form of Order to reflect the judgment, such as my Lord has just given, is firstly, that my Lord allows the application for judicial review; secondly, that my Lord issues certiorari to quash the relevant decision and thirdly, my Lord, I have an application for mandamus requiring reconsideration afresh and according to law. My Lord knows that the usual course is that faced with that being made an undertaking is usually given.

59. MR JUSTICE COLLINS: I think, Mr Matthias, I assume this being a reputable authority, that it will undertake to act in accordance with what I have said, namely to reconsider the matter on a proper basis.

60. MR MATTHIAS: My Lord, that is right.

61. MR JUSTICE COLLINS: Unless you have anything to say, costs must follow the event?

62. MR MATTHIAS: I have nothing to say on that. I am instructed to ask for leave to appeal my Lord's judgment. My Lord will be aware that so far as I am aware this is the first time that this new obligation has come before this Court for consideration and it is a particularly difficult and sensitive matter from the point of view of this authority, for reasons that my Lord knows well.

63. MR JUSTICE COLLINS: Yes, Mr Matthias I do not think it actually need trouble the authority. All that he has to do is follow what I think the Act quite clearly lays down and consider all the matters that it has to consider. It then, of course, has to have regard to what is available and if there is nothing available it then has to send the family to the best that is available.

64. MR MATTHIAS: It is this, my Lord: the concern is that the local authority is trapped between the legislation and the realities, and the concern of the local authority is that on most days to, as it were, go through the procedural hoops that the legislation requires will be necessarily a purely academic exercise.

65. MR JUSTICE COLLINS: That may be, but not necessarily because if that approach had been adopted here it is at least possible that someone might sensibly have said to himself, "Wait a minute, we know that we have to house in suitable accommodation, in the interim period, this man. Why not put him back in 49?" I know what you say about that, but I think if someone had thought of it and realised that that is the sort of approach they had to adopt, it might have happened and none of us would be here. You see it is that sort of thing. I agree with you that on many cases I do not doubt that the result will inevitably be no different. Although one thing, I think, that does come out of this is that all boroughs, not only Newham, have to really -- and I think it is about time they did -- reconsider what the Act actually says and what their obligations are. Some of the boroughs which dump more than others perhaps should have a certain degree of pressure put upon them.

66. MR MATTHIAS: I think this borough would consider itself to be, as it were, a victim rather than ----

67. MR JUSTICE COLLINS: I think it probably is. This is a matter which I thought was supposed to be dealt with by the borough wide agreement. If this judgment makes it clear that difficulties can arise and it is not dealt with, perhaps I will have achieved something.

68. MR MATTHIAS: My Lord, that is right. The outcome could be better, it could be worse. Every time one reconsiders - my Lord has that well in mind and my learn friend, Mr Ojuri, as well.

69. MR JUSTICE COLLINS: I made it clear that it may well be Mr Ojuri will not benefit in the end because there simply is not anywhere else.

70. MR MATTHIAS: He might do worse.

71. MR JUSTICE COLLINS: He is hardly likely to do worse. They are not going to remove him from there, are they? That would be totally irrational.

72. MR MATTHIAS: The decision to put him there has been quashed and I understand now that a fresh decision must be taken.

73. MR JUSTICE COLLINS: Let me put it this way, Mr Matthias: if this authority decided to remove him to somewhere that was less suitable, I would take no persuading at all to quash it because I have already indicated that this falls at the lowest possible end of suitability. Try it, if you will - no of course you will not.

74. MR MATTHIAS: No, but I am instructed to ask for leave to appeal. I fear my Lord is against me on that?

75. MR JUSTICE COLLINS: I have not really decided. Mr Luba, is there anything you have to say about this?

76. MR LUBA: No, in the event my Lord has determined this case on normal and ordinary judicial review principles. My learned friend is quite right that this is the first time they applied in this new jurisdiction, but I cannot see anything that it might be said that your Lordship has in principle erred in relation to that.

77. MR JUSTICE COLLINS: I like to think I have not. However that is not necessarily the full test. I think that if you want to go further you must persuade the Court of Appeal.

78. MR MATTHIAS: Thank you, my Lord.

79. MR LUBA: I am most grateful for my learned friend conceding that the usual Order for costs should follow the event.

80. MR JUSTICE COLLINS: You want taxation?

81. MR LUBA: Legal Aid taxation, please, my Lord.

82. MR JUSTICE COLLINS: You may certainly have that.

83. MR LUBA: I am very much obliged, my Lord.