Andrew Brookes, Partner
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Introduction
1. When can a local authority take their own resources into account when carrying out their duties under the homelessness legislation? Can a local authority refuse to provide or terminate assistance under Part VII of the Housing Act 1996 because of resource considerations? The issue of when a local authority can take its own resources into account has been the subject of much jurisprudence in other social welfare fields¹, but has been less of an issue with regard to Part VII of the Housing Act 1996. However, the issue was put under the spotlight recently by the Court of Appeal in R (on the Application of Therese Conville) –v- Richmond upon Thames London Borough Council² which examined duties towards applicants found to be intentionally homeless.
Facts of the Conville Case
2. The facts of this case are not remarkable but are worth repeating because the local authority pointed to them in support of its argument that the effect of a resource free duty would be to significantly lengthen the time required to be given to intentionally homeless applicants to find their own accommodation. Ms Conville was a single mother of one son, aged 13 years. By letter dated 22 February 2005 the local authority wrote to her with their decision that, in the terms of the 1996 Act, they were satisfied that she was homeless, had a priority need (as she had a dependent child) but also that she had become homeless intentionally. Ms Conville was given 28 days notice to leave her temporary accommodation, such period being deemed sufficient to give her reasonable opportunity to find her own accommodation (s190(2)(a) of the 1996 Act.)
3. An extension of time was granted, but Ms Conville was then told by letter received on 11 or 12 May 2005, that the provision of temporary accommodation would cease on 3 June 2005, that is about three weeks from the receipt of the letter. Ms Conville then obtained an interim injunction from the Administrative Court that the local authority provide accommodation pending the outcome of a Judicial Review or further Order. The day before judgment at first instance was handed down on 4 July 2005 Ms Conville succeeded in finding her own accommodation in the private sector. All parties agreed that Ms Conville had done everything required of her to find accommodation. However, it still took her four and a half months for her to secure accommodation.
4. The Judicial Review at first instance challenged the decision on various grounds, but the main part of the appeal was against the decision of Goldring J that the local authority was entitled to take the extent of its own resources into account when considering its duty to a homeless person who has been found intentionally homeless under Section 190(2)(a).
The Court of Appeal’s judgment
5. It has been established in other social welfare cases that the broader and more general the terms of the legislation, the more readily the statute can be construed as allowing a local authority to take resources into account (see most recently R (on the Application of G) –v- London Borough of Barnet³). It was impossible for the local authority in Conville to argue that the very precise wording of s190(2)(a) allowed it be interpreted in the same way as s17(1) Children Act 1989 in G v Barnet. Instead, the local authority argued that it could not sensibly decide what period of accommodation will afford a reasonable chance to an intentionally homeless person to obtain their own accommodation without having regard to the cost of providing it. The local authority argued that, because s190(2)(a) does not expressly exclude resources as a consideration, the local authority can take this into account4.
6. The local authority argued that if Section 190(2)(a) was resource free, this would create a potentially indefinite obligation to secure accommodation unless and until the Applicant obtains accommodation, provided the Applicant makes reasonable efforts. The local authority argued that this narrowed the distinction between Section 190 (2) (a) and the “full” duty contained in Section 193(2) to a dangerous extent. The local authority stressed the limited nature of s190(2)(a) and the differentiation between it and the “full” duty under s193.
7. The Court of Appeal though found itself bound to allow the appeal on the basis of the strict wording of s190(2)(a). The plain wording of the statutory language, stressing that the obligation to secure accommodation was owed to “him” made it clear that the period to be provided must be based on the individual’s needs and abilities. Section 190(2) (a) imposes a duty and not a power and this is emphasised by the fact that the statute says that a local authority “shall” secure accommodation rather than giving any discretion. The Court of Appeal accepted that Section 190(2)(a) does not refer to the “average” or “reasonable” applicant and also that there was no express reference to resources in the section. As far as the Court of Appeal was concerned, if Parliament had wanted resources to be taken into account, it would have said so expressly.
8. The court noted that other sections of Part VII of the 1996 Act do explicitly list other factors to be taken into consideration. The court contrasted Section 177(2) of the 1996 Act, which refers to the housing circumstances prevailing in an area with the absence of such language in Section 190(2)(a). Section 208 of the 1996 Act states that so far as “reasonably practicable” the local authority should provide accommodation in its own area5. In contrast, Section 190(2)(a) does not contain any such wording. The court carried out a useful review of Part VII of the Housing Act and the various obligations on local authorities. The court noted the highest duty is the Section 193 duty, and the lowest is the Section 192 duty. Section 190(2) (a) is the middle duty. The court noted that the statute used “person-centred” language, accepting Ms Conville’s argument.
9. The court noted that there was no reference to resources being a considered in the Code for Guidance (although, of course, this does not have statutory effect).
10. The court examined the G –v- Barnet case at some length and quotes this. However, at paragraph 36, the Court of Appeal stated that “A reasonable opportunity of securing accommodation for his occupation” means it is what is reasonable from the applicant’s standpoint, having regard to his circumstances and in the context of the accommodation potentially available. The Court of Appeal was able to come to a different conclusion than the House of Lords in G v Barnet because the court noted that in G v Barnet the language of the Children Act refers to the local authority taking “reasonable steps” not the applicant. This phrase is entirely absent in Section 190(2)(a). In deciding whether a step taken by an authority is reasonable, regard may to had to the authority’s resources. In Section 190(2)(a), the word reasonable refers to the applicant and not the local authority.
11. The court also accepted other submissions made by the Applicant, particularly that Part VII was a safety net of last resort, and that if resources could be taken into account, it would result in inconsistency between applicants. Part VII related to the provision of emergency accommodation rather than housing allocation as set out under Part VI.
Analysis and Implications
12. As a result of Conville, will local authorities now have to provide accommodation for intentionally homeless applicants for many months? At present 28 days is often routinely allowed using a standard phrase in the s184 letter. That was the period mentioned in the previous Code of Guidance as a suggested time. The new code of guidance (July 2006) refers to “a few weeks” Will local authorities in areas of high housing demand and high prices, such as in London, be particularly effected?
13. The Court of Appeal in Conville felt constrained by the express wording of s190(2)(a). However, Judicial analysis of similarly uncompromising language in s193(2) has been a little more complicated. Again, the principle is that lack of resources cannot be taken into account when deciding whether accommodation is “suitable” within the meaning of Section 193. However, in Codona v Mid Bedfordshire DC6 Auld LJ (with whom the other members of the court agreed) stated that “the duty to provide suitable accommodation is absolute in the sense there is no statutory entitlement of, or duty on, a local housing authority, when determing suitablity, to have regard to its resources or general practicablity of offering accommodation to homeless persons….” However, “Although financial constraints and limited housing stock can be taken into account in determing suitablity, 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.” In other words, as in Sacupima7, suitability is not itself an absolute concept. It may have various levels, though there is a Wednesbury minimum below which it cannot fall.
14. Of course there is a difference between s190(2)(a) and s193(2), in that s190(2)(a) refers to giving the applicant a reasonable opportunity and s193 refers to the local authority providing suitable accommodatioin. For the Court of Appeal, the “person centred” language of s190(2)(a) was enough to convince them that s190(2) (a) was resource free, and that the more complex nature of the “absolute” duty imposed by s193 was to be avoided. It is difficult to fault this analysis.
15. In Conville the court looked carefully at other decisions concerning powers and duties and compared the homelessness legislation with other social welfare obligations. In particular, the court compared the context of the Children Act, where the House of Lords recently looked at the whole issue of local authority duties and powers in the case of R (G) –v- Barnet. In that case the court emphasised that there was a duty to assess, but only a power (including resources) to consider a response to the assessed need. s190(2)(a) clearly imposes a duty, and again is different from s17(1) Children Act because the Children Act refers to the local authority’s duty obligation not the person-centred language of s190(2)(a). Again, it is difficult to fault this given the very plain wording of s190(2)(a).
16. The court agreed that there were good policy reasons for not allowing a local authority to take resources into account in the context of intentional homelessness. Part VII of the Housing Act 1996 is designed to be a safety net for those in the greatest need. But is it? Where an intentionally homeless applicant has a dependent child, the authority will need to carry out a s17Children Act 1989 assessment which must consider housing. Other duties under the community care legislation may also come into play. While it is true that there may be other duties, it is still true that Part VII is the only safety net specifically designed around housing needs.
17. Hard-pressed local authorities in inner city areas are those which have to deal with Part VII applications most often. If they could take resources into account in discharging their duty under Section 190(2)(a) this would mean applicants in those areas would be at a disadvantage compared to applicants at more affluent local authorities. The same differential would be true if local authorities could look at other resource related factors such as the number of applicants on its Part VI waiting list.
18. The local authority argued that a resource-free interpretation of Section 190(2)(a) would result in a virtually open-ended obligation to provide accommodation, which was the conclusion reached by Goldring J at first instance. The Court of Appeal rightly pointed out that the obligation is not open ended and there will come a point when the authority can lawfully decide that the applicant has been afforded a reasonable opportunity. There is still a long way between the s193(2) and the s190(2)(a) duty.
19. Arguably though the Court of Appeal is out of step with earlier decisions of the higher courts in cases such as Din,8 Puhlhofer9 and Awua10 where the courts have been very cautious about interpreting the “safety net” provided by Part VII of the Housing Act 1996 more widely than existing local authority practice.
20. The spotlight put on s190 by Conville may require more resources to be put into assessing the needs of intentionally homeless applicants. In Conville, the court commented that it doubted whether the fairly extensive investigations carried out, and set out in a detailed witness statement prepared by the local authority’s assessing officer were sufficient.
21. The problem is that in practice local authorities have tended to rather neglect their duties to the intentionally homeless. s190(2)(a) has been something of a backwater with little of the decision making effort put into it compared to the duties under s184, s188, s193, s202 and s204 of the Housing Act 1996.
22. If the Court of Appeal decision stands, it is likely to result in the need for local authorities to modify their practices with regard to intentionally homeless persons. In evidence before the court in Conville, statistics gleaned from the ODPM and analysed by Shelter, showed that there are some 14,000 applicants found to be intentionally homeless each year. Almost all local authorities include in their decision letter a single sentence stating that a period 28 days (or, in some cases, less) is sufficient for the applicant to find their own accommodation. If this was ever lawful, it will certainly not be sufficient in future. Decisions taken without an assessment of the applicant’s needs will be an invitation to judicial review by disgruntled applicants. In future, the local authority will need to carry out an assessment of the intentionally homeless applicant’s needs and be able to justify the time limit given. The time limit will have to be tailored to each individual applicant’s needs. Of course, 28 days (or less) may continue to be an appropriate period in many cases, but a blanket application of a general rule will certainly be unlawful.
23. As far as advisors of applicants are concerned, they will need to look more carefully at the reasoning given in the Section 184 decision on the period to be given to the intentionally homeless applicant, with a view to challenge where appropriate. Applicants’ advisers may want to get their information on their local authority area on the availability of private sector accommodation for those claiming benefits. Such information is often kept by the local housing authority itself.
24. Conville will inevitably mean an increase in the amount of time allowed to many intentionally homeless households to find their own accommodation. The greatest impact is likely to be felt in areas of high housing demand, such as London, where it can be very difficult for applicants in receipt of benefit to find suitable accommodation. The possible resource implications may be counteracted by savings for social services department. There will of course be an adjustment of the balance between social service duties under the Children Act and housing duties under the Housing Act. Local Authority social services departments which previously would have step in before the 28 days expire may not be so burdened if the housing duty continues for a longer period.
25. To conclude, unless the House of Lords allows an appeal11, the effect of Conville is to throw the spotlight onto intentionally homeless applicants. It may have resource implications for local housing authorities. In Scotland, the proposal is to abolish the concept of intentional homelessness and no doubt if the case proceeds further, the local authority will argue that the Conville decision takes a step towards abolishing the distinction in England and Wales as well.
Andrew Brookes, Anthony Gold
August 2006
1 For example R v Gloucestershire CC ex p Barry [1997] AC 584; R v East Sussex CC ex p Tandy [1998] AC 74
2 [2006] EWCA Civ 718. The first instance decision is at [2006] HLR 1
3 [2004] 2 AC 208. See also
4 See Re Findlay [1985] AC 318 and R(Khatun) v Newham London Borough Council[2005]QB37
5 For a decision on s208 see R (Calgin) v Enfield 2005 EWHC 1716
6 [2004] EWCA Civ 925,
7
8 Din (Taj) v Wandsworth LBC [1983] 2 AC 657
9 R v Hillingdon LBC ex p Puhlhofer [1986] 1 AC 484
10 R v Brent LBC ex p Awua [1996] 1 AC 55
11 Permission to appeal was refused by the Court of Appeal. A petition for permission was lodged at the House of Lords on 10 July 2006.
Andrew Brookes is a Partner and Head of the Housing and Public Law department. For further information email Andrew or call 020 7940 4000.
