England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 January 2007

Mr Justice COLLINS :

1. These seven claims were dealt with together because all concern the manner in which the defendant has dealt with the claimants' homelessness applications. In each case, sometimes after what has been submitted to have been an unlawful delay, the defendant has accepted that they were homeless, in priority need and that their homelessness was not intentional. Thus the full duty under Part VII of the Housing Act 1996 was owed to each claimant. They all claim that they have not been dealt with in accordance with the law. They complain that the method adopted by the defendant, whereby it has dealt with them by applying its allocation policy which is maintained under Part VI of the 1996 Act, was unlawful because the allocation policy was itself unlawful in that it was irrational in the manner in which it applied to those who were homeless. In addition, in one case (Mohamed: CO/4654/2006) it is said that a scheme applied by the defendant known as Home Options was unlawful. In addition, each claimant asserts that he or she has not been dealt with by the defendant in a lawful manner even if the allocation policy was not unlawful.
2. In one case (Abdulle: CO/4724/2006), Mitting J granted permission limited to the ground that the defendant had been in breach of its statutory duty in that it had failed to secure that the claimant was provided with suitable accommodation. He refused permission to challenge the defendant's allocation policy. In her case, there is a renewed application to be permitted to argue the general ground relating to the alleged unlawfulness of the defendants' allocation policy. In the cases of Ali (CO/0563/2006) and Mohamed (CO/4654/2006), permission was refused and the oral renewal applications are before me. All the other cases are applications for permission which have been ordered to be heard together since all (save Mohamed) raise the same point in relation to the Allocations Policy.
3. As I indicated in argument, I have decided to grant permission in all cases and the hearing of each is treated as the hearing of the substantive claim. Ms Rowlands submitted that Mohamed should not be heard since his case did not raise the same point as the others but dealt with a separate issue, namely Home Options. However, it seemed to me that the challenge in relation to that was not at all complicated and Ms Rowlands accepted that the defendant did not need to put any further evidence about it. Since the other issues raised in Mohamed were similar to those in the linked claims, it seemed sensible to deal with all and in the end Ms Rowlands very sensibly did not press her opposition.
4. Each claimant has a large family and so requires accommodation which has more than three bedrooms. Such accommodation is not readily available in Birmingham. The defendant is the largest local authority in the country and at any one time has some 19000 people waiting for housing and a further 17000 awaiting transfer. In the year ending 31 March 2006, there were 9576 homelessness applications, which is apparently about 20% of all applications made in England. There is a limited stock and inner city clearance programmes coupled with the exercise of rights to buy reduce what is available. The defendant has entered into agreements with registered social landlords so that 50% of their vacancies are made available to it and, so far as possible, individuals are given advice to try to help them to find privately rented accommodation or accommodation out of the defendant's area. In addition (and it is this aspect of its approach which has led to the challenges in many of these cases) the defendant tries to keep persons living in their own properties so that they do not have to apply for accommodation as homeless. This has been extended so that, even though the defendant may accept that because, for example, of chronic over-crowding, it is not reasonable to expect a family to continue to live in accommodation so that they must be regarded as homeless, they are required to remain in that situation waiting for suitable accommodation to become available. I shall have to consider other aspects of what the defendant has or has not done in the individual cases in due course.
5. I should add that in two cases ('Omar: CO/7747/2006') and 'Ali: CO/0563/2006') a breach of Article 8 of the European Convention on Human Rights has been raised. Counsel accepted that this did not give any added protection insofar as their judicial review claims were concerned but would, if established, found a claim for damages under the Human Rights Act 1998. In Sharif (CO/6763/2006) an offer of apparently suitable accommodation had been made and so that claim did not need to be pursued. I left open any argument about costs, but did not otherwise consider it.
6. I should set out the relevant statutory provisions. I start with Part VII of the Housing Act 1996 which deals (as amended by the Homelessness Act 2002) with homelessness. Section 175(1) provides:-

"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession …

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him continue to occupy."

There are thus two different types of homelessness. The first, which has been described as 'roofless', applies where the individual is without anywhere to live. The second, which results from s.175(3), has been described as 'homeless at home', and applies where the individual is in accommodation but cannot reasonably be expected to remain there. He has a roof over his head, but he cannot be expected to remain where he is. Section 176 provides that accommodation is only to be regarded as available if it is available for occupation by the individual together with his family and anyone else who might reasonably be expected to live with him.

7. Section 183 provides:-

(1) The following provisions of this Part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

And Section 184 states:-

"(1) if the local authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part."

8. It is apparent that the threshold for the duty of Councils to act under s.184 is a low one (cf: Mohamed v Manek & another (1995) 27 H.L.R. 439@449) since it arises if they have reason to believe the applicant may be homeless or threatened with homelessness. In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the Council not to believe that the applicant may be homeless or threatened with homelessness. Furthermore, no particular form of application is prescribed. This is not surprising since the provisions are dealing with people who are likely to be vulnerable and who cannot be expected to have obtained legal advice or to have an acquaintance with the statutory provisions. If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a Council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of s.175(3) even if there is no application based specifically on homelessness. Furthermore, there is no power to defer the inquiry which has to be carried out under s.184(1): see Robinson v London Borough of Hammersmith & Fulham [2006] EWCA Civ 1122. In paragraph 36, Waller LJ said:-

"It also seems to me that it is clear that the authority is not entitled to postpone the taking of a decision simply to avoid a duty."

In Robinson, the applicant was nearly 18. If under 18, a full duty would automatically have applied. If the authority waited until she was over 18, there would be no such automatic duty. Thus it was in its interest to try to defer the inquiries until she was 18. However, provided its inquiries took only a reasonable time to carry out, if by then the situation had changed, the decision reached would properly be based on the circumstances then existing. What it could not lawfully do was to defer the carrying out of the inquiries even though it thought, having regard to the average time it took to make the necessary inquiries, the applicant would by then be over 18. The circumstances might have been such that it was clear within a very short time that the applicant was under 18 and was homeless so that the full duty was owed.

9. Section 188 imposes an interim duty to accommodate in cases where a person might be homeless and in priority need. Since the presence of dependent children produces a priority need (s.189(1)(b)), all the claimants were clearly in priority need if they were homeless. That duty is to secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him (s.188(1)). Any accommodation made available by virtue of any of the provisions of Part VII of the Act must be suitable: see s.206. And s.210(1) provides:-

"In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts 9 and 10 of the Housing Act 1985 (slum clearance and overcrowding) and Parts 1 to 4 of the Housing Act 2004."

For the purpose of these claims, the relevant provisions of the 2004 Act are in Part 1 which sets out what is described as a new system for assessing housing conditions and enforcing housing standards in substitution for the existing system based on fitness for human habitation. Regulations prescribe what are called Category 1 and Category 2 hazards. Hazard means 'any risk of harm to the health or safety of an actual or potential occupier … which arises from a deficiency in the dwelling … as a result of the construction of any building, an absence of maintenance or repair, or otherwise': s.2(1). If a local authority considers that a Category 1 hazard exists, they must take the appropriate enforcement action: s.57(1). If the hazard is a category 2 hazard, they have the power to take appropriate enforcement action: s.7(1). There are various enforcement actions specified. They include, for example, prohibition orders, emergency remedial action and hazard awareness or improvement notices. Failure to comply with any notice or order is a criminal offence: ss.30 and 32.

10. Since in all these cases it has been accepted (albeit, the claimants submit, belatedly) that the claimants are not intentionally homeless, the duty is that imposed under s.193 of the 1995 Act. This, so far as material, provides:-

"(2) … [T]he authority … shall secure that accommodation is available for occupation by the applicant

(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

(5) The … authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged this duty under this section.

(6) The … authority shall cease to be subject to the duty under this section if the applicant –

(a) ceases to be eligible for assistance …

(c) accepts an offer of accommodation under Part VI (allocation of housing), or

(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord …

(7) The … authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequences of refusal and of the right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part VI.

Subsections 7B to 7F of s.193 qualify subsection (6)(cc) so that an assured shorthold tenancy with a private landlord can effect a discharge of the duty provided that it is approved by the authority and is a fixed term tenancy. Further, there is no obligation on the applicant to accept such tenancy. There are other requirements which I do not need to consider in the circumstances of these cases.

11. The duty in relation to threatened homelessness (which applies where an applicant is likely to become homeless within 28 days: s.175(4)) is dealt with in s.195. S.195(2) provides:-

"(2) If the authority –

(a) are satisfied that he has a priority need, and

(b) are not satisfied that he became threatened with homelessness intentionally,

they shall take reasonable steps to ensure that accommodation does not cease to be available for his occupation."

12. The Homelessness Act 2002 requires a local authority to formulate a homelessness strategy. This is a strategy as s.3(1) states,

"(a) preventing homelessness in their districts;

(b) securing that sufficient accommodation is and will be available for people in their district who are or may become homeless;

(c) securing the satisfactory provision of support for people in their district –

(i) who are or may become homeless; or

(ii) who have been homeless and need support to prevent them becoming homeless again."

Local authorities such as the defendant may reasonably say that, given the reduction in its housing stock and the pressure of numbers of those seeking accommodation, it is well nigh impossible at present to achieve what is set out in s.3(1)(b). However, it is important to note that Parliament has clearly placed an understandable emphasis upon the need for authorities to take measures to try to avoid homelessness.

13. S.193(5) does not prevent an authority from fulfilling its duty if the accommodation which is made available is not permanent. In R v Brent LBC ex p, Awua [1996] 1 AC 55 at p. 72B, Lord Hoffmann said this:-

"I would therefore hold that the duty of the local housing authority to an unintentionally homeless person in priority need under section 65(2) is simply to secure that accommodation becomes available for his occupation. Under the substituted section 69(1), the accommodation must be 'suitable', but this does not import any requirement of permanence. In determining whether accommodation is 'suitable' the Council is instructed to 'have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act.' This points to suitability being primarily a matter of space and arrangement, though no doubt other matters (such as whether the occupant can afford the rent) may also be material. But there is no reason why temporary accommodation should ipso facto be unsuitable. If the tenure is so precarious that the person is likely to have to leave within 28 days without any alternative accommodation being available, then he remains threatened with homelessness and the Council has not discharged its duty. Otherwise it seems to me that the term for which the accommodation is provided is a matter for the Council to decide. In some cases, such as a person in priority need because he is old, mentally ill or handicapped (section 59(1)(c)), the Council may decide to provide permanent accommodation as soon as reasonably possible. In other cases, such as the pregnant woman in my earlier example, it may prefer to use temporary accommodation and wait and see. But provided that the decision is not Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233), I do not think that the courts should lay down requirements as to security of tenure."

It is, however, obvious that it is in the interests of an authority to provide accommodation which, if not permanent, at least gives a right of occupation for a substantial period of time since otherwise the individual will become homeless again within a relatively short time and the authority will be likely to owe him the full duty. It is also to be noted that Parliament has prevented the provision of an assured shorthold tenancy from being capable of fulfilling the duty under s.193 unless there are special additional protections against early termination. The defendant's policy is to wait until it can provide accommodation which has a degree of permanency (usually under Part VI of the 1996 Act) in order to discharge its duty under s.193.

14. Part VI of the 1996 Act deals with allocation of housing accommodation by a local housing authority. S.159(1) requires an authority to comply with the provisions of Part VI in allocating housing accommodation. For the purposes of these cases, the relevant section is s.167. This provides, so far as material:-

"(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.

For this purpose, 'procedure' includes all aspects of the allocation process, including the persons or description of persons by whom decisions are to be taken.

(2) As regards priorities, the scheme shall be framed so as to secure that reasonable reference is given to –

(a) people who are homeless (within the meaning of Part VII);

(b) people who are owed a duty by any local housing authority under section … 193(2) or 195(2) …

(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d) people who need to move on medical or welfare grounds (including grounds relating to a disability); and

(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).

The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of persons with urgent housing needs).

(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2): and

the factors which the scheme may allow to be taken into account include –

(a) the financial resources available to a person to meet his housing costs;

(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;

(c) any local connection … with … the authority's district.

(8) A local housing authority shall not allocate housing accommodation except in accordance with this allocation scheme."

S.167(3) gives the Secretary of State power to issue regulations which can add further descriptions of people or otherwise amend or repeal any part of s.167(2).

15. S.169 requires local housing authorities to have regard to such guidance as may from time to time be given by the Secretary of State in exercising their allocation functions. Paragraph 5.9 of the guidance requires authorities to have regard to the following considerations:-

"a) the scheme must include mechanisms for:

i) ensuring that the authority assess an applicant's housing need, and for

ii) identifying applicants in the greatest housing need

b) the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167(2), over those who do not;

c) the reasonable preferences categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need;

d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and

e) a scheme may provide for other factors than those set out in s.167(2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167(2). (See Paragraph 5.25 below)."

16. The government has also issued a lengthy Code of Guidance pursuant to s.182 of the 1996 Act in relation to the exercise by authorities of their homelessness functions under Part VII. Paragraph 12 of the Overview of the Homelessness Legislation provides:-

"If settled accommodation is not immediately available, accommodation must be made available in the short term until the applicant can find a settled home, or until some other circumstance bump the duty to an end … A settled home to bring the homelessness duty to an end could include the offer of a suitable secure or introductory tenancy in a local authority's housing stock (or nomination for a housing association assured tenancy) allocated under Part 6 of the 1996 Act or the offer of a suitable tenancy from a private landlord made by arrangement with the local authority."

This shows that the authority should look to some form of settled accommodation. To a degree, this may seem to be inconsistent with what was said in Awua. Awua merely construes the statutory provisions and deals with the manner in which the functions can lawfully be exercised. The functions, to which regard has been had, indicate how in practice those functions should be exercised.

17. The guidance refers to the government's target to 'halve the number of households living in temporary accommodation by 2010' (Paragraph 3.5). Paragraph 6.6 underlines the point I have already made that applications need not be made in any particular form. It states:-

"Applications can be made by any adult to any department of the local authority and expressed in any particular form; they need not be expressed as explicitly seeking assistance under Part 7. Applications may also be made by a person acting on behalf of the applicant, for example, by a social worker or solicitor acting in a professional capacity, or by a relative or friend in circumstances where the applicant is unable to make an application themselves (sic)."

No doubt, this should not be limited to adults. Paragraph 6.16 emphasises the need to deal with inquiries as quickly as possible. It concludes:-

"Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make inquiries under s.184. In many cases it should be possible for authorities to complete the inquiries significantly earlier."

18. The defendant's Allocation Policy is a substantial document running, together with 11 Appendices, to 81 pages. It was produced in January 2005. At its outset, it states that the Council operates a single housing register for applicants and tenants and that all allocations are made on the basis of housing needs priorities unless exceptional circumstances exist. There are 5 Bands (labelled A to E) of priorities. Those in A and B will have their applications reviewed quarterly; the rest will be reviewed annually. The need which gives the highest priority will determine the appropriate Band. Those who qualify on more than one basis (for example, being homeless and having a disability) will get priority within the Band over those who have only a single qualification. The assignation of a Band for homeless persons is dealt with in Paragraph 11.1; 11.1.2 and 11.1.3 are particularly material. They provide:-

"11.1.2 Homeless households who have been placed in temporary accommodation (for example, bed and breakfast) by the Council awaiting permanent rehousing because the Council has accepted that it has a duty to rehouse them are placed in Band A.

11.1.3 Homeless households whom the Council has accepted that it has a duty to rehouse but who are not currently in temporary accommodation arranged by the Council (for example people who are living with parents or friends while awaiting rehousing) are placed in Band B."

Those who are not in priority need are placed in Band C and those who are intentionally homeless in Band D.

19. The policy records that accommodation must always be suitable. That means it must be of a size to accommodate the whole family and should be in a location that was requested or as far as possible to the applicant's area of choice given the availability of stock and the urgency of any needs. If there is little possibility of meeting the applicant's needs or preferences within a reasonable time, staff will discuss with the applicant the possibility of widening the area of choice or other matters which may increase achievability (see p.51). In Appendix 7 it is said that the Council may agree that a household is overcrowded even if it does not meet the statutory rules.
20. Against that background, I should set out the relevant circumstances of the individual claims. I shall do so as briefly as possible.

(1) Abdishakur Aweys (CO/4586/2006)

(i) The claimant arrived in this country as a refugee from Somalia. He had lost touch with his family. In December 2003 he was granted a tenancy of a two bedroom flat on the 8^th floor of a block owned by the Council. In December 2004, he was joined by his wife and 6 children, who are now aged between 17 and 9. As is obvious, this meant that the accommodation was severely overcrowded and the claimant says that he immediately sought to make a homeless application to the Council. He was instead asked to complete a rehousing application form.

(ii) His attempts to get alternative accommodation from the Council got nowhere and so he contacted solicitors. On 24 February 2005, they wrote to the Council pointing out that there was overcrowding which should mean that it was not reasonable to expect the claimant to continue to occupy the flat so that he should be regarded as homeless. There was no response from the Council. The solicitors obtained a report from an expert, a Mr Wheeler, which confirmed that there was statutory overcrowding. This was sent to the Council on 28 April 2005, together with a threat of judicial review if no appointment to take a homeless application was made within 7 days. On 16 May 2005 the Council at last responded. It said that the claimant had not informed the Council when his wife and family joined him, but said that when he had visited the neighbourhood office on 9 March 2005, he had been advised that he was not homeless and that he needed to submit a transfer application.

(iii) Not surprisingly, this led the solicitors to write a pre-action protocol letter threatening judicial review. The Council's response was to say that should he wish to complete a homeless application he could present himself at any local neighbourhood office. This he did. An appointment was made for an interview on 22 September 2005. His solicitors provided him with a letter setting out in detail why he should be regarded as homeless under s.175(3) of the Act. The Council maintained its refusal to accept an application because of the need for interpretation facilities. Under pressure from the claimant's solicitors, it did so on 26 September. On 21 November 2005, it decided that he was not homeless because he was in no worse a situation than other large families occupying accommodation which was overcrowded. It stated:-

"The general housing stock throughout Birmingham may be considered as unreasonable to occupy due to factors of overcrowding, unfitness, environmental or housing needs."

(iv) The failure to comply with the Council's duty under the Act was all too obvious. The claimant's solicitors sought a review and on 21 December 2005, the Council wrote saying:-

"The panel has agreed to overturn the original not homeless decision to homeless priority. Consequently, you will be made an offer of accommodation in line with the Current Allocation Policy".

It was also pointed out that where it was not possible for the Council to make an offer in the claimant's preferred area, it reserved the right to make an offer close to his chosen area.

(v) On 13 February 2006, the claimant's solicitors wrote asking for the provision of temporary accommodation. The reply, which came on 10 March 2006, said:-

"Mr Aweys currently occupies accommodation managed by the City Council, which he is occupying temporarily until alternative accommodation has been offered to him in discharge of our full duty to him. It is accepted that he is slightly overcrowded at this address, however as stated before he only remains there awaiting an offer of accommodation."

The letter went on to indicate that since no suitable accommodation had been identified in his limited preferred areas of choice, he would be contacted with a view to extending those areas.

(vi) It was not and has not since been suggested that he is not homeless. Since he can only be regarded as homeless on the ground that it is not reasonable to expect him to continue to occupy his present accommodation, the use of the adverb 'slightly' is extraordinary. The solicitors threatened judicial review again. This led to a belated reply on 15 May 2006. It was denied that staff had ever refused to accept a homeless application since what they had done was to advise that a transfer application was appropriate because initially he was not treated as being homeless. Since the necessary inquiries had not been made and it was clear that a s.184 duty existed, that approach was manifestly wrong. Complaints made by the solicitors about inappropriate banding (he was in Band B) were met by the answer that the policy was to provide temporary accommodation only to roofless cases and, since demand for temporary accommodation was very high, they were put in Band A whereas those, such as the claimant, who were in the Council's own statutorily provided accommodation were in Band B.

(vii) On 1 June 2006, the Council wrote to explain why temporary accommodation would not be provided. In that letter, this was said:-

"To surmise (sic) your case, on 21 December 2005, it was concluded that you were homeless, eligible for assistance and in priority need, as you reside in a two bedroom property and your household consists of two adults and six children.

In arriving at the decision as to whether we will now exercise our powers to accommodate you pending full discharge of duty, we have considered the following points."

The writer then sets out matters which are accepted by Ms Rowlands as inappropriate considerations since they are relevant to the exercise of a power to provide accommodation pending review of an adverse decision on homelessness. They have little relevance to the duty under s.193. The letter concludes by saying:-

"We have accepted that we owe you a duty but we consider that it is reasonable for you and your family to remain at your present temporary accommodation … This is merely a temporary measure, it does not have to be ideal accommodation until an offer of permanent accommodation is offered. Notwithstanding this, the accommodation has all the necessary facilities for you to reside at the property. Therefore, it is considered that the property is acceptable for you and your family to reside at the property temporarily until the City Council has fully discharged its duty to you."

(viii) The Council continues to accept that the claimant is homeless. He is only homeless because, pursuant to s.175(3) of the 1996 Act, it is and has since the decision of 21 December 2005 been recognised that it is not reasonable to expect him to continue to occupy his present accommodation. If so, it is impossible in my view to regard that accommodation as suitable. Ms Rowlands, faced with this obvious difficulty, submits that the standard of suitability can vary and that accommodation which is unsuitable for any long term occupation may be regarded as suitable in the short term. That principle certainly exists. Thus, for example, bed and breakfast accommodation is regarded as unsuitable for more than 6 weeks. But if the s.175(3) test is met, the person in question cannot be expected to continue there any longer. That being so, it cannot by any stretch of language, principle or imagination be regarded as suitable. It must fall below the line wherever that line is drawn: cf R v Newham BC ex p Begum [2000] 2 All ER 72 at p.79h.

(ix) I shall deal with the question whether the allocations policy is lawful after considering the facts of the claims. The fact that Mr Aweys has been waiting for over a year since the fact of his homelessness was accepted suggests that something has gone badly wrong with the system.

(2) Amina Abdulle ...CO/4721/2006)

(i) The claimant and her husband live together with their seven children, aged between 13 years and 18 months. She was evicted from her privately owned accommodation through no fault on her part in March 2003 and the Council accepted that the full s.193 duty applied. She stayed with friends in grossly overcrowded conditions until October 2003 when, following threats of an application for injunctive relief, she was provided with temporary accommodation. Eventually, in June 2004 she was offered permanent accommodation by the Council.

(ii) This only had 3 bedrooms and, having regard to the imminent arrival of her husband and birth of her sixth child, she said it was not suitable. But, sensibly, rather than run the risk of having nowhere, she accepted it but asked for a review of its suitability. That request was in the form of a letter from her solicitors.

(iii) On 9 September 2004 the Council wrote accepting that a further offer should be made. While the letter does not say in terms that the accommodation was unsuitable, it is clear that it was accepted to be so since otherwise the Council would have discharged its duty to the claimant.

(iv) No subsequent offer has been made although over 2 years have now passed. This may be partly because she has been demoted to Band B. In a letter of 31 March 2006, the Council said that she was correctly in Band B because she was not in temporary accommodation arranged by the Council. Furthermore, her choice of preferred areas was contributing to the difficulty in finding suitable accommodation.

(v) It is difficult to understand how it can be said that she is not in temporary accommodation arranged by the Council. The Council has arranged for her to be in her present accommodation. It has accepted that it is unsuitable for the purpose of discharging its s.193 duty. She is only in it until a suitable permanent accommodation can be found. She is therefore on any sensible use of the English language in temporary accommodation. Thus, even if the allocation policy is lawful, it has been misapplied in her case and she should be and should always have been in Band A.

(3) Muhidin Adam (CO/4725/2006)

(i) The claimant lives with his wife and six children, aged between 12 and 2 in a two bedroom flat on the 14^th floor of a tower block owned by the Council. He was on his own when the flat was allocated to him in June 2003. In August 2003, he was joined by his wife and their then four children. He applied to the Council because of the overcrowding, but was unable to have his application accepted. He was told he was on the Council's list and would have to await a transfer.

(ii) On 4 October 2005, his solicitors wrote a letter headed in capitals 'Please Accept this letter as a Homeless Application on Behalf of Mr Adam' requesting the Council to make the appropriate enquiries. Together with the overcrowding, the claimant's wife has a deformed knee which makes it very difficult to reach the 14^th floor on the all too frequent occasions when the lifts are out of order.

(iii) On 4 November 2005, the Council accepted that he was homeless and that the full duty was owed. It said:-

"This department will, therefore, be securing other accommodation for your occupation."

No offer was made. On 24 March 2006, the claimant's solicitors wrote threatening judicial review. On 13 April 2006, they received a similarly inappropriate letter to that received by Mr Aweys (see Aweys at paragraph (vii)). It accepted that the present accommodation was 'unsuitable for you to remain on a permanent basis' but was being used as temporary accommodation until the Council could discharge its duty. It was 'slightly' overcrowded (again, an extraordinary assertion) but did not, as it was temporary, need to be ideal.

(iv) Since it is accepted that he is homeless, it cannot be reasonable to require him to continue to live where he now is. Furthermore, it is temporary accommodation provided by the Council, as the letter itself says and so he should be in Band A in accordance with the words of the allocation policy.

(v) It follows that the Council has not complied with its duty under Part VII of the 1996 Act.

(4) Abdullah Mohamedi CO/4654/2006

(i) The claimant was granted the tenancy of a council owned two bedroom flat on the eighth floor of a tower block. This commenced on 19 January 2004. On 30 January he was reunited with his wife and six children. He now has seven children aged between 20 and 2.

(ii) He tried unsuccessfully to obtain a transfer because of the severe overcrowding. Eventually, on 22 March 2006 his solicitors wrote, under the heading in capitals 'This is a Homeless Application', demanding that he be treated as homeless and be provided with suitable accommodation accordingly. Instead, he was provided with a document headed 'Home Options'. That scheme, which was designed to try to reduce the incidence of homelessness, required a person first to go through a home options interview to enable the Council to try to prevent homelessness or to provide alternatives.

(iii) Ms Rowlands accepts, inevitably, that that was unlawful. A council must comply with s.184 on receiving an application which shows a person may be homeless or threatened with homelessness. That duty cannot be deferred. Naturally, the Council can, and no doubt should, endeavour to see whether in carrying out its duty it can avoid the homelessness. This is particularly so in the case of threatened homelessness since s.195 requires that accommodation be available once actual homelessness would otherwise occur.

(iv) This claim was lodged. The response was that the council had 'now arranged for a homeless application to be accepted and the claimant was interviewed on 8 June'. This response was refuted by the claimant's solicitors by letter of 29 June 2006. This showed that this interview had been cancelled. Whether or not Goldring J, who refused permission on 17 August 2006, saw this letter, I do not know. His refusal, which was based on the Council's apparent agreement to hear the application as a homeless one, would be strange if he had seen it.

(v) The solicitors applied for an oral renewal on 23 August. Whether or not as a direct result of this, a homeless interview was eventually arranged for 11 September 2006. On 19 September, it was accepted that he was homeless and that the full duty was owed.

(vi) The claimant is in Band B. No offer of suitable accommodation has been made. As in the cases of Aweys and Adam, his present accommodation cannot be regarded as suitable and so the Council is in breach of its duty. Equally, it must be regarded as temporary and so he should be in Band A.

(5) Helena Omar (CO/ 7747 /2006)

(i) The claimant has seven children, aged between 21 and 6. Her husband is dead. She and her children came to this country in November 2000. In December 2000 she became an assured shorthold tenant in Birmingham. Unfortunately, her landlord persistently failed to carry out necessary work to the premises. They have suffered from water penetration leading to mould and dampness which has affected the family's health. In addition, there has been a rat infestation.

(ii) As a result of the poor conditions of the property, the claimant made a homeless application in July 2004. This resulted in attempts by the Council to get the landlord to carry out repair work. None was done and the conditions remained thoroughly unpleasant. On 29 December 2004, Mr Wheeler, the expert, produced a report following an inspection. He was of the opinion that due to a combination of defects which were injurious to health and overcrowding (it had three bedrooms, one of which was very small, and, because of two living rooms, would not be regarded as statutorily overcrowded: however, since the living rooms could not reasonably be used for sleeping purposes, it was in fact overcrowded) there were still Category 1 and Category 2 hazards.

(iii) Following a belated decision on 27 September 2005 that the claimant was not homeless, her solicitors sought a review. There was an unacceptable delay so that on 20 February 2006, judicial review was threatened. A social worker employed by the Council added his support to the claim, confirming that there was a major issue of overcrowding and that the poor condition of the premises gave rise to concerns for the children's' welfare and safety.

(iv) The landlord at last indicated he would do some repair work. On 6 April 2006 the relevant parts of the 2004 report were brought into effect. Work started in May. On 8 May 2006, the review panel, having seen reports following various visits by officials to the property, accepted that the claimant was homeless and that a full duty was owed to her. On 25 May, her solicitors wrote saying that it was urgent that she be provided with temporary accommodation.

(v) The Council failed to provide any alternative accommodation. On 11 July 2006, a letter from a Review Officer recorded that the claimant 'currently occupies privately rented accommodation … which she is occupying temporarily until alternative accommodation has been offered to her in discharge of our full duty to her'. The letter went on to say that the author had inspected the premises and noted that repair work had been completed. The claimant had raised the issue of mice infestation (this may have been a misunderstanding or a belief that they were very large mice) and had been advised to contact pest control. However, it was not suggested that the conditions had improved so that she should no longer be regarded as homeless.

(vi) Despite the fact that it was accepted that it was not reasonable to expect the claimant to continue to occupy the premises, the Council did nothing to provide her with suitable accommodation. This claim was lodged on 12 September 2006. It is suggested in the grounds for contesting the claim, which were lodged on 4 October 2006, that the accommodation 'was historically bad: it is not now' and so it was suitable. This is clearly wrong. So long as the Council continues to accept, as it must on the evidence, that the claimant is homeless, it is impossible to argue that the accommodation is suitable, however temporary it may be expected to be. It is also argued that s.193(2) does not require the Council to provide temporary accommodation. It requires the Council to provide suitable accommodation. Since the Council for good reason has a policy to discharge its s.193 duty only by the provision of settled accommodation, it does have to provide temporary accommodation if, as is the case here, the existing accommodation cannot be regarded as suitable.

(vii) The Council made an offer of what it said was suitable permanent accommodation. On 15 December 2006, the claimant refused it and has sought a review of the Council's decision that it was suitable so that its s.193 duty has been discharged. In the meantime, a further report by Mr Wheeler has shown that there are a number of Category 1 and Category 2 hazards despite the repairs that have been carried out to the existing accommodation. There thus seems to be a breach of the 2004 Act duties and, whether or not the claimant was justified in refusing the offer made, she must be provided with suitable accommodation, which means that she must be able to leave her present accommodation.

(6) Abdiladif Mohammed Ali (CO/0563/2006)

(i) The claimant and his wife have six children aged between 12 and 1. Following acceptance of his homeless claim in June 2002, the Council offered him a three bedroom maisonette. He is registered as disabled. Sadly, his daughter, Sabarina, who is now 5, is severely disabled and not expected to live for more than another 6 years. He accepted the offer only because it was better than the accommodation he was then occupying and sought a review of its suitability. The Council failed to carry out the review and so the claimant appealed to the County Court. The claim was settled when on 28 July 2003 the Council accepted that it was not suitable so that it had not discharged its s.193 duty. The consent order records that the Council agreed –

"… that the property [then as now occupied by the claimant] is not suitable for the appellant and his family and … that it has not discharged its duty to the appellant under Section 193(2) of the Housing Act 1996."

(ii) No action was taken by the Council to comply with its continuing duty. On 24 August 2004, the claimant's solicitors wrote to the Council recording that he had been told that the Council was just waiting for a suitable property to become vacant. Still nothing happened. On 25 February 2005, the solicitor wrote again. She pointed out that Sabarina's disability required adaptations to the property but that he had been told by social services that they would not carry out any works since the accommodation was temporary. They had agreed to adapt any suitable accommodation which was found. The letter concluded with a request for suitable temporary accommodation since he and his family had been living in what had been accepted to be unsuitable accommodation for two years.

(iii) Judicial review was threatened. On 4 May 2005 the Council's response complained that he had only given 'a very small area of choice' and stated he was in Band B. The complaint was spurious: the Council itself indicates on its standard application form that areas of choice could not necessarily be accommodated. The inclusion in Band B was contrary to the wording of the policy since he was in unsuitable accommodation.

(iv) At last in November 2005, an offer was made. But it was for temporary accommodation only. When he went to view it, the Council operative, who had clearly not received proper training, gave him false information that, since the property was furnished, his own furniture would be his responsibility and would, if left in his present accommodation, be disposed of. When he said he wanted to get advice from his solicitors before deciding whether or not to accept, he was told that his refusal to make an immediate decision would be treated as a refusal and no further offer would be made. That was clearly irrational.

(v) A letter from the homeless review manager of 17 November sought to deal with the concern that the claimant was in Band B rather than A and the assertion that he needed to be close enough to a helper upon whom the claimant relied to enable Sabarina to be looked after. The manager, having made no proper enquiries, refuted this and further expressed the opinion based, it would seem, on no evidence that alternative sleeping arrangements could be made to deal with the expressed concerns about the unsuitability of the ground floor room identified for Sabarina. So far as the banding was concerned, this was said:-

"On assessing the housing needs of Mr Ali's household it is accepted that his current accommodation is not suitable to meet his family's housing need. You have requested that he be placed in Band A. The City Council only provides temporary accommodation to those homeless applicants who have no alternative accommodation available to them. In such instances these households are placed in Band A. As Mr Ali can stay in his current accommodation until alternative accommodation is found he will not be awarded Band A."

(vi) I have real concern that a manager and the person who the Council has put forward as its witness in these claims should show such apparent ignorance of the duties imposed by Part VII of the 1996 Act. The accommodation occupied is, as the Council accepted in July 2003 when consenting to an order against it in the County Court, unsuitable. There is therefore a continuing breach of duty in not providing him with suitable accommodation. To adopt an approach which does not give him the greatest chance of finding suitable accommodation is to maintain the unlawful action or, rather, inaction. Furthermore, the placement in Band B fails to take Sabarina's disability into account. It was not until July 2006 that it was recognised that that disability required elevation to Band A. The excuse for not doing so earlier was that Sabarina's condition was progressive and had deteriorated. That is a singularly unimpressive excuse.

(vii) I have no doubt that there has been a continuing failure to comply with the Council's duty to provide suitable accommodation. There is an added concern that the Council has unreasonably narrowed the choice of accommodation which may be available by looking only for adapted as opposed to adaptable properties. This concern is valid. The Council must make proper investigations about the asserted need to be near the helper and Sabarina's requirements. The family has been in unsuitable accommodation for far too long.

21. I am satisfied, as is apparent from my discussion of each claim that the defendant has failed to deal with the claimants in accordance with the provisions of Part VII of the 1996 Act. It is important that councils should appreciate that, if they decide that the s.193 duty will only be discharged by the provision of settled accommodation and particularly if that is to be accommodation provided by them under Part VI of the Act, they must ensure that in the meantime the homeless person is provided with suitable accommodation. For the homeless at home, their existing accommodation can never be regarded as suitable, even for a short time, since they are only homeless if it is not reasonable to expect them to continue to live there.
22. Ms Rowlands has made the point that it may be better for a family to remain in unsuitable accommodation for a period rather than be moved temporarily, perhaps to another area, so that there will be more than one upheaval. Equally, she has submitted that the court has recognised that councils cannot be expected to achieve the impossible and so a period of time must be allowed for some alternative accommodation to be found. The court has a discretion whether or not to grant relief and must recognise the difficulties which councils have in finding suitable accommodation particularly for large families. In R(Khan) v London Borough of Newham [2001] EWHC 589 (Admin), Scott Baker, J set out matters which were in his view relevant to the exercise of the court's discretion. The case itself involved the provision of accommodation which was unsuitable because of overcrowding. I can summarise the four relevant matters he referred to as follows:-

(1) the nature of the temporary accommodation being occupied and the extent of its unsuitability

(2) The length of time for which the breach of duty has continued. In that case, it was nearly 6 months.

(3) What efforts the council has made to find suitable accommodation. The situation was similar to Birmingham's: there was little that could be done because of the pressures on the council and the problem of catering for large families.

(4) The likelihood of accommodation becoming available in the near future.

23. I accept that families may sometimes prefer to remain in unsuitable accommodation for a short time rather than move to temporary accommodation. But councils must recognise that it is a breach of their duty to require them to do so. There must be discussion leading to agreement and no compulsion. Equally, it must be clear that the length of time before proper accommodation is found will be short. It is to be noted that 6 weeks is regarded as the maximum period during which bed and breakfast accommodation should be provided. I do not suggest that that is a rigid maximum period for all purposes, but it is a guide to what will be regarded as unreasonable. Any longer period will need clear justification such as, for example, a certainty of suitable accommodation which will discharge the duty becoming available in a few weeks.
24. It is apparent from the circumstances of these cases that there have been consistent accounts of failures by the defendant to deal with applications in accordance with the law. Since the duty arises if a person may be homeless or threatened with homelessness, an application, whether one which is specifically based on homelessness or one which raises the possibility of homelessness (such as a transfer application based on, for example, overcrowding or the poor state of the current accommodation), must be dealt with in accordance with Part VII. It is impermissible to advise a person threatened with homelessness to wait until a court order is made or eviction occurs. That is contrary to s.195 which requires a council to 'take reasonable steps to secure that accommodation does not cease to be available for his occupation'. Obviously, one way of complying with that duty is for a council to try to ensure that the applicant can remain where he is if that accommodation is suitable. But the duty requires that, if he is evicted, he must have somewhere immediately available to him so that he does not cease to have accommodation available to him.
25. This is relevant to the Home Options Scheme. It cannot lawfully be used to defer consideration of a homeless application. All steps taken to avoid homelessness are of course laudable. But any such steps must be taken in parallel to the carrying out of the duty under Part VII.
26. Birmingham's policy is to place homeless persons on its housing register which it uses for the purposes of Part VI. There is nothing wrong with that in principle; provision of accommodation under Part VI is one way of discharging a council's duty: see s.193(7). In addition, by s.193(3A) a council must give the applicant a copy of its policy on offering choice to people allocated housing under Part VI. But the council must recognise that including a person in its allocation scheme cannot discharge the duty under Part VII. Suitable accommodation must be provided directly or, as I have said, within a reasonably short time, and that may have to be temporary if there are likely to be delays in getting anywhere permanent.
27. If the council wishes to avoid the need to provide temporary accommodation, it must give priority to all those to whom the duty under s.193 is owed. It is in my view impossible to justify the division between Band A and Band B. Each is in temporary accommodation and those who are homeless at home and so relegated to Band B are in unsuitable accommodation so that there is an ongoing breach of duty. Those in other temporary accommodation because they were roofless may be in suitable accommodation and so hardly deserve priority over those who are in unsuitable accommodation. There is a real concern that the council's approach is driven by the financial advantages that flow to it from being able to show that it is making less use of temporary accommodation in that homeless at home are not regarded as being in temporary accommodation (although as a matter of fact they clearly are). Thus the policy as it stands is incapable for the homeless to whom the full duty is owed of complying with Part VII of the Act. It is thus in that respect unlawful.
28. I must finally deal with the Article 8 grounds. If there is a breach of Article 8, there may be a claim for damages which can be pursued. There is otherwise no private law claim available against the council in respect of its breach of statutory duty under Part VII of the 1996 Act. Counsel accepted that it would not be possible for me to deal with any such claim which is raised in Ali (0563) or Omar (7747), but submitted that I should at least decide whether such a claim could be pursued.
29. In Morris v Newham LBC [2002] EWHC 1262 (Admin), Jackson J dealt with an Article 8 claim in a homelessness case. There was a failure to comply with the s.193 duty. He considered a number of authorities, both domestic and from Strasbourg. Article 8 reads:-

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

30. From the authorities, Jackson J derived four propositions of law (Paragraph 59). These were :-

"1. Article 8 … does not impose on a public authority a duty to provide a home to a homeless person.

2. the fact of homelessness may be relied upon as one element of a claim that a person's rights under Article 8 to private or family life have been breached. However, homelessness by itself cannot found such a claim.

3. A homeless person has no right in tort to recover damages against a local authority for failure to provide accommodation, in accordance with duties imposed by Part VII of the Housing Act 1996.

4. Absent special circumstances which interfere with private or family life, a homeless person cannot rely on Article 8 … in conjunction with Part VII of the Housing Act 1996 in order to found a damages claim for failure to provide accommodation".

Those propositions have not been challenged before me.

31. There has not been any positive act of the council which interferes with the family or private life of either claimant. It has not, for example, evicted either of them or had the children put into care. But, as the European Court of Human Rights has made clear, Article 8 does not merely compel the states (or, in a domestic context, a public body) to abstain from such interferences: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A public body has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private or family life: see Botta v Italy (1998) 26 EHRR 241 at paragraphs 33 – 34. In June 2001 the Court found that a claim was manifestly ill founded where a street homeless applicant had been advised to attend a night shelter providing the council's efforts to find suitable temporary or permanent accommodation: O'Rourke v United Kingdom (Case 39022/97).
32. R(Bernard) v Enfield LBC [2003] HCR 354 is an example of a claim which succeeded. The claimants were husband and wife who had six children. The wife was seriously disabled and doubly incontinent. There was an admitted breach of the council's duty under s.21 of the National Assistance Act 1948 (they had been found to have been intentionally homeless) in a failure to provide suitable accommodation. The wife could not go upstairs and there was a lack of privacy which was particularly distressing owing to her incontinence. Because the accommodation was so unsuitable she was unable to play her part in looking after the children and engaging in any sort of normal family life. Sullivan J accepted that the size of the family and her disabilities excused the council from finding a property within under 3 or 4 months, but the claimants had been waiting for some two years. Sullivan J noted that the fundamental element of family life was the right to live together so that family relations could develop naturally and that members of a family could enjoy one another's company. He also made the point that those entitled to care under s.21 were a particularly vulnerable group and that positive measures were needed by way of community care facilities to enable them to enjoy, as far as possible, a normal private and family life.
33. The situation in both claims is not as bad as that which applied in Bernard. That is not in any way to seek to minimise the suffering resulting from the overcrowded conditions coupled, in the Omar case, with the effect on health of the disrepair and the rat infestation and, in the Ali case, with the severe disability of Sabarina.
34. Much will depend on the court's view of the effect of the failure to provide suitable accommodation on the claimants and their families. There has been no physical break up of the family: they have remained together. But that is not determinative; as Bernard shows, there may nonetheless be an interference. And added to that is the effect on private life. It is now 2 ½ years in Mrs Omar's case since the council ought to have found her to be homeless and 9 months since it has so found. In addition, there has been a failure to take the necessary action to comply with the 2004 Act. Mr Ali has been waiting for over 3 years.
35. In the circumstances, I think that the claimants may be able to satisfy the test of exceptional circumstances. Much will depend on the judge's assessment of the evidence when tested of the effect on them of the failures by the council. I cannot say that the claims are bound to fail and so I do not strike them out. Equally, I must not be thought to be saying that they are bound to succeed. The hurdle to be surmounted is a high one. If there is an interference and so a breach of Article 8.1, the council cannot rely on 8.2 since the interference would not have been in accordance with the law.
36. I will hear counsel on the appropriate orders which I should make in all the cases including what should be done with the damages claims.