England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 November 1999

MR JUSTICE DYSON:

Introduction

There are before me 7 applicants who seek to challenge decisions made by the Respondent housing authority under Part VII of the Housing Act 1996 ("the 1996 Act"). They are all homeless persons. One issue that is common to all the applications is whether the Respondent lawfully discharged the interim duty owed under section 188 of the 1996 Act to provide suitable temporary accommodation pending a decision as to whether it owed a duty to provide suitable longer term accommodation under section 193. On behalf of three of the applicants, Mr Knafler additionally submits that the Respondent was in breach of other duties arising under Part VII. I shall deal with these additional points after I have decided the questions that are common to the 7 applications.

Each applicant was, until becoming homeless, a resident in the London Borough of Newham. Each applied to the Respondent for the provision of alternative accommodation. Each was required by the Respondent to remain with his or her family in the accommodation until the day of eviction by the bailiffs, and then to attend at the Council offices.

The applicants were then informed that the Respondent would not be securing accommodation for them in its area, or in any neighbouring area, or in London at all. They were told that bed and breakfast accommodation had been secured for them at a seaside resort, such as Great Yarmouth, Brighton and Southend. All the applicants were on income support, and unable to afford the cost of travelling to Newham to continue with schooling, employment or medical care of themselves or members of their families.

Each applicant sought permission to move for judicial review, and at short notice obtained interim orders from the Court requiring the provision of accommodation which was closer to Newham. In each case, such accommodation was immediately found and provided.

It is submitted on behalf of the applicants that the decision to secure bed and breakfast accommodation for each of them at the seaside was unlawful. The conclusion that such accommodation was suitable was taken without regard to all relevant considerations and/or was unreasonable in the Wednesbury sense. The Respondent contends that the decision was lawful. Before I discuss the arguments further, I need to refer to the material statutory provisions.

Statutory provisions

So far as material, the 1996 Act provides as follows.

"175. (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. .....

(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days. .....

182. (1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State. .....

184. (1) If the local housing 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. .....

(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision. .....

188. (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part. .....

193. (1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. This section has effect subject to section 197 (duty where other suitable accommodation is available).

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

(3) The authority are subject to the duty under this section for a period of two years ('the minimum period'), subject to the following provisions of this section. .....

206. (1) A local housing authority may discharge their housing functions under this Part only in the following ways –

(a) by securing that suitable accommodation provided by them is available,

(b) by securing that he obtains suitable accommodation from some other person, or

(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person. .....

208. (1) So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district. .....

210. (1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts IX, X and XI of the Housing Act 1985 (slum clearance; overcrowding; houses in multiple occupation).

(2) The Secretary of State may by order specify –

(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and

(b) matters to be taken into account or disregarded in determining whether accommodation is suitable for a person."

The policy adopted by the Respondent

Mr Williams is the Respondent's Homeless Co-ordinator. In his first witness statement, he describes in some detail the approach of the Respondent to the discharge of its duty to secure for these applicants suitable accommodation under section 188. He says that they could not provide anything more suitable for these applicants than what was provided when the offer was made : "we are constrained from doing everything that we might wish because we do have to contend with a very serious shortage of resources" (paragraph 3). At paragraph 4 he says:

"..... we are constrained by what accomodation is available to us at that point in time. Very often it will only be bed and breakfast accomodation, and often the only bed and breakfast accomodation available will be outside the Borough. Nonetheless, we do our utmost to ensure that the interim accomodation provided is suitable to the reasonable needs of the family in question for the short period (normally no more than 28 days) required for us to make our decision as to the duty (if any) that owe to the family under Part VII of the Act."

He explains that their task is not made any easier by other Boroughs accommodating large numbers of their own homeless households in the self-contained and the bed and breakfast accommodation that does exist in Newham. The homelessness crisis is of "unparalleled proportions", exacerbated by the large number of asylum seekers. In the year ending 31 March 1999, the Respondent overspent its homeless temporary accommodation budget by £2.5M. It is obliged to turn to bed and breakfast accommodation "as a last resort" when no other form of temporary accommodation is available.

He states that the main forms of temporary self-contained accommodation that exist are "leased" (leased by private owners to the Respondent and sublet), "Non-Secure" (Council owned properties let on weekly non-secure tenancy agreements), and "Housing Association Leased Scheme" (assured shorthold tenancies granted by Housing Associations pursuant to agreements with Newham). There are strictly limited amounts of such accommodation available. As the number of applicants rises inexorably, the Respondent is forced into even greater reliance on bed and breakfast accommodation. This has serious financial ramifications, and the Respondent will once again seriously overspend its homeless temporary accommodation budget.

There are relatively few hotels in Newham. The Respondent belongs to the Bed and Breakfast Information Exchange ("BABIE"). This is an arrangement between London local authorities by which they agree how much they will pay hoteliers for accommodation, and what standards of accommodation they will require. The current agreed BABIE rate for a double room is £27 per night. Mr Williams says that the Respondent cannot pay more without breaking the BABIE agreement, and more importantly, because it cannot afford to pay more.

When the Respondent has taken all available rooms in hotels in Newham which are of the appropriate standard and are willing to agree to BABIE rates, it looks to neighbouring boroughs, and then to other parts of London, and finally outside London. It is often at seaside resorts such as Brighton and Great Yarmouth that it is able to find accommodation of the right standard and which is available at BABIE rates.

The Respondent only considers that temporary bed and breakfast accommodation out of the Borough or out of London is unsuitable if there is a "serious reason" for doing so. Serious reasons in this context exist where there is a "serious risk to the life or health of the applicant, his family or another" if the applicant and his family are accommodated out of the Borough or out of London. Examples would be where the applicant is mentally ill and being supervised in the community by Social Services who are unable to continue the supervision out of the Borough, or where the applicant is seriously ill and in receipt of important out patient treatment from a local hospital which might not be available elsewhere. Serious reasons do not include the fact that the applicant's children are attending schools or colleges in Newham, or are about to sit examinations in Newham, or that the applicant has employment in Newham, or that members of the applicant's family are suffering from ill health. Mr Williams says that if such reasons meant that applicants could not be accommodated outside Newham or outside London, the Respondent would be unable to comply with its duty under section 188 in a large number of cases.

The facts

The account which follows is based on what happened in the case of Ms Sacupima. It is common ground that, although there are differences in the 7 cases, none of them is material to the outcome of the challenges to the lawfulness of the decisions made under section 188. I do not, therefore, propose to outline the facts of the other cases.

Ms Sacupina is a single parent with 6 children who were born between 1979 and 1998. She has at all material times been on income support. Until 23 June 1999, she lived in private rented accommodation in Newham in a three bedroomed house with five of her children. On 7 April 1999, a possession order was made against her, requiring her to vacate the house by 26 May. On 22 April, she made an application to the Respondent under Part VII of the 1996 Act for accommodation for herself and the five children. On 23 June, she was evicted by the bailiffs, and was told by the Respondent that she would be provided with temporary accommodation pending a decision on her application for accommodation under section 193. Her case was then considered by Mr Nyaunu, the Authorising Officer. He completed medical questionnaires that were on the file, and the Nomination/Booking Form. The box on this form for "Special requirements (including medical)" was left blank. Mr Nyaunu explains in his statement that he decided that bed and breakfast accommodation outside London would be suitable by way of interim accommodation "as a last resort". That is why he left the "special requirements" box blank.

This form together with Ms Sacupima's file were then transferred to an Allocations Officer, Mr Bryant, who undertook the task of allocating accommodation to the family. He allocated bed and breakfast accommodation at the Ambassador Hotel, Great Yarmouth on 23 June. Before doing so, he considered the documents that he had received from Mr Nyaunu. He says in his witness statement that the only interim accommodation of appropriate size that was available that day was bed and breakfast accommodation in Great Yarmouth. He knew from the fact that the "special requirements" box was blank that there was no "serious reason" why the family should not be accommodated in bed and breakfast accommodation out of the Borough, or even out of London as a last resort.

The accommodation offered comprised three separate rooms in a bed and breakfast guesthouse without cooking or food storage facilities. Ms Sacupima felt that she had no alternative but to take the accommodation, but she considered it to be extremely unsuitable. She had been living in Newham for five years. Her three eldest children all missed classes at school because of the distance. It took about three hours to travel from Great Yarmouth to their schools, and Ms Sacupima was unable to afford the fares. Her daughter Adriana was enrolled on a nursing course at Thames Valley University, and was on a placement with a London employer from 28 June until 9 July; her son Artur was at Newham College on an Advanced Business Administration course, and was undertaking examinations that were to end on 9 July; and Yolanda (who was 14 years of age) was attending Sarah Bonell School in Newham, and was taking her GCSE examinations until 9 July. The youngest child, Jennifer, regularly attended the Special Burns Unit at Broomfield Hospital, Chelmsford. Ms Sacupima was unable to afford to pay the cost of travel between Great Yarmouth and London. She did, however, arrange for the three eldest children to stay with friends in London, but in very cramped conditions. Jennifer had missed a hospital appointment because she was unable to afford the fare.

Lawfulness of the decisions under section 188

Are the authority's resources relevant to suitability?

In view of the crisis facing many housing authorities including the Respondent, this is obviously an important question. On behalf of the applicants it is submitted that the duty to secure suitable accommodation, whether under section 188 or 193, is unqualified. The accommodation must be suitable for the applicant. Accommodation that is not suitable to meet the housing needs of an applicant cannot be rendered suitable simply because the authority is unable to afford accommodation that is suitable for those needs. On behalf of the Respondent, it is argued that in deciding what constitutes suitable accommodation, the authority is entitled to have regard to the cost of providing it. It is not a "resource free" decision.

There is no doubt that the statute requires the accommodation to be suitable for the applicant. The phrase "suitable accommodation", which appears in section 206(1) and 210(1) and (2) means suitable for the applicant. Indeed, section 210 speaks of accommodation being "suitable for a person". It is clear that the accommodation is not required to be suitable to the authority. Henry J reached the same conclusion as a matter of statutory construction under the predecessor legislation contained in the Housing Act 1985: see R v London Borough of Brent ex parte Omar [1991] 23 HLR 446, 457.

There is nothing in the statute that indicates that the duty should in any way be qualified by reference to the authority's resources. Section 210(1) states that, in determining whether accommodation is suitable, the authority shall have regard to those provisions of the Housing Act 1985 which are concerned with slum clearance, overcrowding and houses in multi-occupation.. It was this which led Lord Hoffmann to say in R v Brent London Borough Council ex pte Awua [1996] 1 AC 55, 72C:

"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)".

Nor is there anything in the Code of Guidance, to which an authority is required to have regard, which indicates that it is entitled or obliged to take its resources into account in deciding what is suitable accommodation.

The question of an authority's resources has been considered, albeit briefly, in previous cases. The clearest statement appears in the decision of Henry J in the Brent case, where at page 459, he said:

"Clearly, the housing authority were entitled to have regard to the realities

given the practical constraints imposed, both by the numbers of competing applicants for a housing stock limited in quantity and quality by financial constraints. A high standard of suitability clearly cannot be obtained".

That was a case concerned with the equivalent of the section 193 duty, but it was a decision which would apply with equal force to the duty under section 188. In R v London Borough of Lambeth ex pte Eckpo-Wedderman [1998] 31 HLR 498, 514 Laws J said (obiter):

"Both in relation to tenure and resources, it must be wholly obvious that the council must have regard to the numbers of competing applicants, its available housing stock and, as Evans LJ said in Mansoor, the situation in the local housing market….And I do not believe that a local housing authority, considering (as it is right that it should) whether to meet a particular and perhaps unusual need by acquiring property on the open market, is obliged to disregard the cost of doing so".

Suitability is not an absolute concept. As was said by Henry J (and has been said in other cases), there can be different standards of suitability. Accommodation can range from an applicant's dream house to something which is only just adequate to meet his or her housing needs. Both are suitable. It is a matter for the judgment of the authority to decide what accommodation on this spectrum of suitable accommodation to select. It has been said many times that the court will be very slow to impugn the performance by a housing authority of its functions in relation to homeless persons: see R v Hillingdon Borough Council ex pte Puhlhofer [1986] AC 484, 518, and R v London Borough of Haringey ex pte Karaman [1996] 29 HLR 366, 375-6. So far as the researches of counsel show, there are only two cases in which the decision of an authority on the question of suitable accommodation has been held by the court to be unreasonable in the Wednesbury sense.

The question nevertheless remains, to what extent can lack of resources be taken into account in determining suitability? I agree with what Collins J said in R v London Borough of Newham ex parte Ojuri (No 3) [1998] 31 HLR 452, 461. Although financial constraints and limited housing stock are matters that can be taken into account in determining suitability, "there is a minimum and 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 accommodation cannot fall". If the accommodation falls below that line, and is accommodation which no reasonable authority could consider to be suitable to the needs of the applicant, then the decision will be struck down, and an appeal to the resources argument will be of no avail.

It follows that any authority which fixes in advance the resources that it will make available for the provision of suitable accommodation must ensure that there is sufficient flexibility in its arrangements to avoid being constrained to provide accommodation which falls below the minimum level of suitability. If in the judgment of the authority accommodation does not meet the minimum housing needs of an applicant, it is not open to it to say that it does meet those needs solely on the grounds that there are no resources available to provide anything better. In deciding what is suitable, the authority is entitled to take into account the fact that the accommodation should be of short duration. Paragraph 10.10 of the Code of Guidance issued by the Secretary of State provides a target period of 30 working days for the completion of enquiries. Paragraph 10.11 states that the target periods are a maximum, and that authorities should seek to deal with applications as quickly as possible. Thus, accommodation which an authority might reasonably consider to be suitable for occupation for about 6 weeks might not pass the suitability test if it were to be provided for, say, two years under section 193.

Mr Luba submits that it was not open to the Respondent to contend that it was compelled to make unsuitable placements by the unavailability of alternative accommodation. The Respondent has made a decision to use only a proportion of its housing stock for the housing of homeless persons in discharge of its duties under section 188 and 193. It was open to it to increase the number of units allocated to homeless persons under section 193, thereby increasing the accommodation available for the discharge of the section 188 duty, or simply to make increased use of its own housing stock to provide interim accommodation for homeless persons. It is also argued that the Respondent has failed to explain why it was unable to provide more accommodation from the private sector by means other than bed and breakfast accommodation.

In my view, it is a matter for the judgment of the Respondent how much of its own stock it uses for what purpose. As Mr Williams points out in his third statement, the Respondent must always balance the demands and needs of those who are on its Housing Register (Part VI applicants) against the demands and needs of those who apply under section 188. This cautious approach to the use of the housing available for those on the council waiting lists for accommodating homeless persons was endorsed in ex parte Puhlhofer (page 517C-D), and again, in the context of a case about the provision of interim accommodation, in ex parte Awua (page 72B). The same idea, expressed slightly differently, is encapsulated in paragraph 21.20 of the Code, which provides:

"21.20. In considering whether to provide accommodation in their own stock an authority will need to balance the limited requirements in the short term from people who are homeless and the greater requirement from others for accommodation over the longer term. Priority should be accorded to long-term allocations providing secure tenancies. However, local circumstances may allow, or require, the authority to set aside part of their own housing stock to provide for the needs of people accepted as homeless. Authorities will need to consider whether the accommodation is suitable, and although hard-to-let accommodation may be suitable for emergency housing it should not generally be used as a matter of policy. Equally the concentration of homeless people in a particular area or estate needs to be avoided."

The court should be extremely slow to criticise the priorities that a local housing authority accords to different claims on its housing stock. Nor should it normally be necessary to do so. For the reasons that I have already given, there is an unqualified obligation to provide suitable accommodation under section 188 and 193. There is a minimum standard of suitability below which the accommodation cannot fall. Provided that what is secured does not fall below that standard, it is immaterial that, if the authority had used less of its stock to house persons on its waiting list, it could have provided a particular Part VII applicant with accommodation of a higher standard of suitability.

Likewise as regards the possible use, or increased use, of accommodation in the private sector.

Bed and breakfast accommodation

It is clear that it is open to a local housing authority to discharge its section 188 duty by securing bed and breakfast accommodation. There is nothing in the definition of suitability contained in section 210 which expressly or impliedly prohibits the provision of such accommodation. Moreover, the Code of Guidance to which the authority is required by section 182(1) to have regard expressly sanctions the provision of bed and breakfast accommodation as suitable in certain circumstances.

The Code of Guidance stated at Paragraph 20.2 (which is in the section dealing with the interim duty to accommodate):

"20.2 While circumstances may on some occasions require the use of bed and breakfast accommodation to provide emergency accommodation, this will generally be as a last resort, and should not be regarded as suitable accommodation for families with children. The legislation requires that all accommodation secured must be suitable."

On 26 October 1998, the Secretary of State gave further guidance on the provision of bed and breakfast accommodation at this interim stage. The Circular included the following:

"In the Secretary of State's view, bed and breakfast hotels may be suitable accommodation in certain circumstances. Such circumstances may include those where an applicant is single and vulnerable and would have difficulty managing a tenancy and/or coping with the isolation of living alone; where emergency accommodation is required at very short notice (for example to discharge the interim duty to accommodate under s.188); and as a last resort where there is simply no better alternative accommodation available.

The Secretary of State considers that the present guidance on using bed and breakfast hotels to discharge an interim duty owed under s.188 of the 1996 Act may be misleading insofar as it states that bed and breakfast accommodation should not be regarded as suitable accommodation for families with children (cf paragraph 20.2). The intended meaning of this statement is that bed and breakfast accommodation should not generally be regarded as suitable accommodation for families with children. It is not intended that this statement should be interpreted as meaning that bed and breakfast accommodation cannot be suitable for families with children under any circumstances. As noted above, the Secretary of State considers that bed and breakfast accommodation may be suitable as a last resort if no better accommodation is available."

Mr Matthias made a submission which he advanced with success before Mr Roger Henderson QC in R v London Borough of Newham ex pte Ojuri (No 1) [8 May 1998, unreported] The argument proceeds as follows. The duty under section 193 only exists where the authority are satisfied that an applicant is homeless. The provisions under Part VII apply where the authority has reason to believe that the applicant is or may be homeless or threatened with homelessness (section 183(1)). A person is threatened with homelessness if it is likely that he will become homeless within 28 days (section 175(4)). A person who is provided with non-secure accommodation from the authority's own housing stock or within the private sector cannot be homeless within the meaning of the 1996 Act. This is because of the requirement in section 5(1) of the Protection From Eviction Act 1977 that tenancies of such accommodation can only be terminated by at least 4 weeks' notice to quit. The provisions of that Act do not apply to hostel accommodation: see section 3A(8).

The surprising result is that, if anything longer than short term hostel accommodation is provided under section 188, the duty under section 193 cannot arise. By short term accommodation, I mean accommodation that can be determined in less than 28 days. Since it cannot have been the intention of Parliament to frustrate the duty to provide accommodation under section 193 in this way, the court should not interpret the duty under section 188 in a way which would have this effect. In other words, I should hold not only that the provision of bed and breakfast accommodation is a lawful and acceptable means of discharging the section 188 duty, but that it is the preferable means of doing so.

I confess that I have considerable doubts as to whether this argument is correct. It is not, however, necessary for me to decide the point, since I do not consider that the applicants can successfully challenge the decisions in these cases on the grounds that what was provided was bed and breakfast accommodation. I should add that Mr Matthias presented this argument without prior warning during his oral submissions, and Mr Luba and Mr Knafler, understandably, were only able to give me limited assistance on it.

Accommodation outside the district

On the issue of location, both sides rely on section 208 of the 1996 Act. Mr Matthias submits that the only guidance in the Act on the question of location is to be found in section 208(1), and relies on the fact that the obligation to secure that accommodation is available for the occupation of the applicant in its district is qualified by the words "so far as is reasonably practicable". This, he submits, brings the issue of resources sharply into focus. Mr Luba submits that section 208 is not concerned with the suitability of the accommodation for the applicant at all. The duty under this section is based on the premise that there may be suitable accommodation outside the Authority's district, but enjoins authorities nevertheless, so far as practicable, to secure suitable accommodation in their own districts.

I do not consider that section 208 assists on the question of the relevance of location to suitability. What is suitable accommodation is a question of fact. The 1996 Act identifies some of the factors that are to be taken into account in determining suitability, but it does not purport to be comprehensive. The Code adds a good deal, but most of the guidance given in the Code is directed to the discharge of the section 193 duty (see paragraph 21.1). As a matter of common sense, the question of location is obviously relevant to suitability. Indeed, this is plainly accepted by the Respondent in the light of its policy of placing applicants within Newham if there is a "serious reason" for doing so. It cannot sensibly be argued that splendid accommodation in Brighton would be suitable accommodation for an applicant whose life would be put at risk by a move away from the vicinity of his previous home.

It is a question of fact and judgment in each case whether bed and breakfast accommodation outside the district of the authority is suitable for the applicant. The authority must have regard to the individual circumstances of the applicant and his or her family, and apply its mind to what is suitable for that family. What it cannot do is place applicants in any accommodation, let alone bed and breakfast accommodation outside the district, simply on the basis that that is all that is available.

The decisions in this case

In this case, the Respondent did consider the circumstances of each applicant, to see what type of accommodation would be suitable: how many rooms would be required, whether ground floor accommodation would be necessary etc. There is no complaint about this aspect of the Respondents's handling of the matter. There is some criticism of its provision of bed and breakfast accommodation as such, but it seems to me that, in the light of the guidance contained in the Secretary of State's letter of 26 October 1998, and having regard to the housing crisis and the resource constraints of which Mr Williams speaks, this is unchallengeable.

The real complaint is on the question of location. The facts of Ms Sacupima's case, which I have already related, illustrate the problem well. In other cases too, the applicant was offered accommodation in a location from which, even if he had the money to pay for the cost of travel, he would be unable to travel to his place of work. These are undoubtedly difficult cases for hard-pressed authorities. I am conscious of the enormous burden faced by local housing authorities in dealing with the problems of homeless housing persons. I accept that it is legitimate for an authority to have a policy to assist it in deciding what accommodation is suitable for which class of applicant. Indeed, that is not only entirely sensible, but it would probably be impossible to deal with these applications on an entirely ad hoc basis without the framework of guidelines and stated criteria. But the policy must not be so rigid or so narrow (whether driven by financial constraints or otherwise) that it prevents a proper consideration of the needs of an applicant, and obstructs a reasonable approach to the question of what accommodation is suitable to meet those needs.

In my judgment, the policy applied by the Respondent prevents it from giving a proper consideration to the question of whether, on the grounds of its location, bed and breakfast accommodation outside the district falls below the line of what can reasonably be regarded as suitable accommodation. It seems to me that it cannot be right not even to consider the effect of the location of accommodation, in particular, on matters such as the education of the children and the employment of the applicant or members of his or her family. If there are several children of the family who are about to take critically important examinations, it seems to me that it is unreasonable in the Wednesbury sense not even to consider the effect of a move to accommodation which is several hours' travelling time away from the children's schools. It may be that suitable arrangements can be made, but that question needs to be explored. If suitable arrangements can be made, then it may be that, in the reasonable judgment of the authority, the accommodation will meet the test of suitability. If, however, suitable arrangements cannot be made, then a decision that the accommodation is nevertheless suitable would in my judgment be Wednesbury unreasonable.

Similarly with employment. If the applicant simply cannot get to work from the proposed accommodation, because he cannot afford the fare and/or the journey would take too long for him to arrive in time, the question would arise whether he could make alternative arrangements, for example, to stay with friends close to his place of work. If such arrangements could be made, the authority might reasonably conclude that the accommodation would just about meet the suitability test, particularly if it knew that the enquiries leading to the section 193 stage were likely to be completed in a matter of days, or the applicant was shortly to go on holiday in any event. But these are all matters that in my judgement would have to be explored before the authority could reasonably arrive at a conclusion on suitability.

I would, therefore, hold that the decisions taken in this case to provide bed and breakfast accommodation outside the district of Newham were flawed. This is because the Respondent failed to give proper consideration to the individual circumstances of each applicant in determining where the accommodation should be provided. The policy that was applied was too rigid and too narrow, in that, unless an applicant's case disclosed "serious reasons" for providing accommodation within the district of Newham, the Respondent was free to secure accommodation anywhere outside the district, regardless of the difficulties that such a location would create for the applicant and his or her family.

Mr Matthias submits that if these applications succeed, they will open the door to numerous Wednesbury challenges to decisions under section 188. He points out that the plain intention of Parliament in enacting the 1996 Act was to free the High Court of the burden of dealing with applications for judicial review in homeless housing cases. To a considerable extent, this is undoubtably true. For most purposes, the scheme of the Act provides for a review of an authority's decision (section 202), with a right of appeal to the County Court against the review decision on a point of law (section 204). But decisions under section 188 are excluded from this scheme. As Mr Luba points out, this is presumably because the timescale for review and appeal on a point of law is such that a decision under section 188 will almost always have been overtaken by the decision under section 193 before the review and appeal process can be completed.

I accept that, as the present cases demonstrate, the existence of jurisdiction to grant judicial review of decisions under section 188 means that there will be High court cases in this area. An aggrieved applicant can seek permission to apply for judicial review, and, if permission is granted, obtain interlocutory injunctive relief.

Mr Matthias does not dispute the existence of the jurisdiction that has been invoked in thses cases. But he urges the policy of the 1996 Act to keep homeless housing cases out of the High Court as a reason for refusing relief in the present cases. I am alive to this concern, but it does not deflect me from holding, on the facts of these cases, that the decisions were erroneous in law in the limited sense that I have attempted to explain. I emphasise that I am not saying that, if the Respondent had considered the circumstances of each of these cases untrammelled by its narrow rigid policy, the decisions would have been any different. Some or all of them might have been the same. As for the concern that the High Court will face a flood of these cases, it is important to understand the limited scope for challenge in these cases. Provided that the authority has considered the individual circumstances of the applicant, it will only be in a truly exceptional case that a decision on suitability will be susceptible to challenge.

Mr Knafler's additional points

Mr Knafler submits that each of the three applicants whom he represents became homeless when the possession order took effect. In the case of Mrs Akhtar, this was on 24 June 1999. The view of the Respondent was that she did not become homeless until 11 August when she was evicted by the bailiffs. Mr Knafler submits that the Respondent was in breach of its duty to provide temporary accommodation under section 188 between 24 June 1999 and 11 August. His argument is that Mrs Akhtar was homeless as from 24 June, because from that date she had no accommodation which she occupied "by virtue of any enactment or rule of law ..... restricting the right of another person to recover possession" (section 175(1)(c) of the 1996 Act).

Mr Matthias responds by pointing out that under section 9 of the Housing Act 1988, the court has the power, on making a possession order, to stay or suspend the execution of the order. Moreover, County Court Rules Order 26 Rule 17(1) provides that an order for recovery of land shall be enforceable by warrant of possession. The corresponding provision in the High Court is RSC Order 45 Rule 3(1). Mr Matthias submits that the effect of these rules is to restrict the right of a landlord to recover possession.

Mr Knafler's reply is simple. He submits that the rules of procedure for the enforcement of an order for possession are not an "enactment" within the meaning of section 175(1)(c) of the 1996 Act. Both CCR Order 26 Rule 17(1) and RSC Order 45 Rule 3(1) are incorporated as part of the Civil Procedure Rules made under section 1 of the Civil Procedure Act 1997. It is clear from section 1 of the 1997 Act that the CPR are rules ofprocedure. They are not an "enactment".

I accept Mr Knafler's submissions. It follows that when a possession order takes effect, the duty to provide temporary accommodation under section 188 can arise.

Conclusion

In the result, these applications' succeed to the extent that I have indicated. I shall hear submissions from Counsel as to what relief (if any) I should grant to give effect to this judgment.