Allocation of Housing Accommodation and Homelessness Case ... of Housing Accommodati… · On 29...

Allocation of Housing Accommodation and Homelessness

Case Law Digest 2012

Allocations of Housing Accommodation and Homelessness Case Law Digest 2013

2

Contents

Allocation of Housing Accommodation p3

Homelessness p9

Further Information p22


3

Allocation of Housing Accommodation

UK Government

Social housing allocation in England

On 15 January 2012 it became possible for local housing authorities in England to begin drawing

up and consulting on new allocation schemes to reflect the changes to allocation law being made

by the Localism Act 2011 sections 145-147.

Allocating social housing

On 29 June 2012 the UK Government issued new statutory guidance to local authorities in England

about social housing allocation. The guidance replaces all previous such statutory guidance, the

new guidance follows a consultation exercise on a draft. The accompanying ministerial

announcement emphasises the increased priority that the Government expects will be given to

military and ex-services personnel.

Eligibility for housing assistance

On 16 July 2012 new regulations came into effect to change legal provisions relating to eligibility

for housing assistance for some EU nationals and their families. Among other changes, they give

effect to the decisions in Ibrahim v Harrow LBC and Teixeira v Lambeth LBC.

Local connection in Housing Allocation

Legal changes to the system of housing allocations in England continued with the laying of a new

set of Allocation of Housing Regulations. They were laid on 19 July 2012 and come into force on

24 August 2012. They limit the powers of local authorities to impose local connection requirements

on allocation schemes that would otherwise impact on current or former members of the armed

forces and their families.

Additional Priority in Housing Allocation

On Friday 30 November 2012 the new regulations, requiring "additional preference" to be given to

certain members of the armed forces in the allocation of social housing in England, came into

effect. The regulations complete the portfolio of legal materials needed by local housing authorities

in England to undertake the revision of their own local allocation schemes.

Magistrates Courts


4

Lewisham LBC v Mary Christine Obanokho, 18 April 2012

The defendant came to the UK from Nigeria in 1996 on a six months visitor's visa but overstayed.

She later bought a 'British passport' for £500 containing a false date of birth. She used it as

identification to apply to the council for social housing and was subsequently given temporary

accommodation by a housing association. She pleaded guilty to offences under the Forgery and

Counterfeiting Act 1981 for using a false passport to obtain social housing and was sentenced to 8

months imprisonment. The association is seeking possession of the home.

Basildon District Council v Rita Limbani ,10 August 2012

The defendant had applied to the council for housing. It nominated her to a housing association

and she was granted a tenancy. The council later discovered that in her application she had not

declared that she owned a property that was registered in her name, that she paid the mortgage on

it, and that she had rented it out to tenants. It brought two charges under the Fraud Act 2006 and a

further charge under the Forgery and Counterfeiting Act 1981. After a trial, the defendant was

convicted at Basildon Magistrates' Court and sentenced to eight months imprisonment.

High Court

R(Moore) v Wandsworth London Borough Council, 17 January 2012

The claimant's father and mother had both died. They had been, in turn, the secure tenants of the

family home. The claimant had no statutory right to succeed, as a second successor, but applied

for a discretionary tenancy under section 5 of the council's allocation scheme. That set qualifying

criteria and provided that decisions would be taken jointly by the area manager and rehousing

manager. The claimant's application was refused by the area manager on the basis that he did not

satisfy the qualifying criteria. The High Court allowed a claim for judicial review and quashed that

decision because: (1) the rehousing manager had not been involved; (2) the application had not

been handled with procedural fairness; and (3) there had been a failure to take account of material

considerations.

R(George) v Hammersmith & Fulham London Borough Council, 2 February 2012

The claimant's mother moved to a care home and he applied to the council for the discretionary

grant of her tenancy to him. In June 2010 the council rejected the application. In April 2011 the

claimant applied again but the council responded that it had decided the application previously.

The claimant sought a judicial review. The High Court held that any claim in respect of the June


5

2010 decision was out of time but that permission to apply for judicial review should be granted in

respect of the April 2011 decision. It was arguable that the refusal to consider the new application

on its merits was unlawful because the earlier application had only been rejected for want of certain

documentation.

R(McDonagh) v Hackney London Borough Council, 15 February 2012

The council adopted a new allocation scheme for pitches on its official gypsy and traveller sites.

The new scheme required applicants to re-register every year and to provide documentary

evidence of a residential connection with the borough. The claimant, an Irish traveller, sought a

judicial review of the new scheme claiming that it imposed unrealistic and bureaucratic

requirements on a mobile and vulnerable group. The High Court dismissed the claim. It was lawful

and rational to adopt a scheme which recognised those with some connection with the area.

Annual renewal was a legitimate means of keep the waiting list manageable.

R (Tout a Tout and Heff) v Haringey London Borough Council, 3 April 2012

The council operated a choice-based letting scheme based on points. Homeless households

placed in temporary accommodation were encouraged to bid. If they had not bid successfully by

the time they reached a 'points threshold' (at which a bid was likely to be successful) they were

given two months' further opportunity to bid freely and then the system would auto-bid for them. If

they were the highest ranked bidder on an auto-bid, the accommodation would be offered (if

suitable) in order to bring the homelessness duty to an end. The claimants, who were owed

homelessness duties, sought judicial review of the auto-bid scheme contending that it represented

an unlawful departure from the statutory Code of Guidance on Allocations. The High Court

dismissed the claim. The scheme afforded a 'choice' to homeless applicants and was not irrational.

R(Cranfield-Adams) v Richmond Upon Thames Royal London Borough Council, 19 June 2012

The claimant was a tenant. He applied for housing under the council's housing allocation scheme.

He was made an offer of social housing accommodation but refused it. The council's scheme

provided that the effect of refusing a suitable offer would be that the application would be cancelled

and any further application would be deferred for a period of two years. The claimant was then

made homeless and applied for accommodation under the homelessness provisions of Housing

Act 1996 Part 7. The effect of his being homeless was that he was entitled to a reasonable

preference in the allocation of housing under the council's scheme: Housing Act 1996 section

167(2)(a). The council decided that he remained subject to a deferral. The High Court dismissed a

claim for judicial review of that decision. Both the scheme and the decision to apply it were lawful


6

given the extreme pressure on social housing, the fact that the council had no housing stock of its

own, the need for co-operation with the local providers of social housing, the legitimate interests of

those housing providers in maximizing rent and the administrative burden upon the council when

an applicant refused an offer.

R(Carney) v Bolton-at-Home Limited [2012] EWHC 2553 (Admin) 6 August 2012

The claimant had lived with her mother in a house rented from Bolton council. In 2009 they were

evicted for anti-social behaviour on grounds that included the misconduct of the claimant herself. In

2011 the defendant took a transfer of the council's stock and also took over the management of the

allocation of properties under the council's housing allocation scheme. The claimant bid for a

property under the Homes for Bolton choice based letting arrangements and was the highest

ranked bidder for a house owned by the defendant landlord in the district in which the former family

home had been situated. The defendant bypassed the claimant for an offer of the property relying

on a provision of the scheme enabling such a bypass to apply to "a customer previously evicted for

anti-social behaviour being rehoused in the same area as the behaviour took place, even if the

customer is now suitable to be rehoused". The claimant sought judicial review of that decision

which had been upheld on an internal review. The High Court dismissed the claim. It rejected a

contention that the bypass provision only applied to a former tenant. It was capable of being read

as applying to any person who had engaged in anti-social conduct. The decision had been taken

lawfully.

Local Government Ombudsman

Complaint against Havering LBC No. 10008622 12 January 2012

The complainant bid, under the council's choice based letting scheme, for a house advertised as

having 3 bedrooms and a parlour. Her household comprised herself and three daughters. Two of

the daughters were adults and the eldest was severely disabled, requiring a ground floor bedroom.

The complainant was the highest ranked bidder with a 3 bed need but was not offered the property

because all 3 bedrooms were on the upper floor. She had intended to convert the ground floor

parlour to a bedroom for her disabled daughter. The property was offered to a family with a four

bed need who used the parlour as a bedroom. The Local Government Ombudsman found that the

council's allocation scheme was defective in that: (1) it did not define the term "children", which had

allowed officers to treat the adult daughters as children for the purposes of the scheme; and (2) the

scheme defined a 3 bed-plus-parlour house as a 4 bed property but the advertising of such a

property was as having 3 bedrooms. In this particular case, the council had also failed to consider


7

its obligations under the Disability Discrimination Act and the Human Rights Act.

Recommendations included a review of the wording of the allocation scheme and £4000

compensation.

Complaint against Ealing LBC Complaint 10015936 16 February 2012

The complainant, a council tenant, was a permanent wheelchair user. She experienced difficulty

exiting and accessing the block in which her flat was located and applied for a transfer. The council

was repeatedly put on notice of her difficulties and the Fire Brigade told the council that she was at

risk in the event of fire. It gave her a 'Band B' priority for transfer on medical grounds but it did not

refer the transfer application to its Social Welfare Panel until September 2011, even though it had

identified this as a possibility in May 2009. This was despite the fact its transfer scheme was

unlikely to lead to a higher priority than Band B on medical grounds and its knowledge of the

lengthy period a Band B applicant for a property suitable for a disabled person would have to wait

for an appropriate offer. The complainant then received Band A priority. Further maladministration

by the council included: (1) telling a councillor that it had carried out works to the door entry system

when that had not been done; and (2) failing to consider a suggestion that it modify the front door

to the block. The local government ombudsman recommended £2000 compensation and a

backdating of Band A status to May 2009

Complaint against City of York Council Complaint No 11 018 683 16 October 2012

The complainant, his wife and their two daughters (then aged 9 and 10) were homeless in March

2010. The council accepted that it owed them the main housing duty (Housing Act 1996 section

193). It made them an offer of a two bedroom property from the allocation scheme which was

accepted. In January 2012 they complained that they had been overcrowded for almost two years.

The second bedroom was only 7.7 sq metres and the girls had been sharing it. The council

rejected suggestions that the home was statutorily overcrowded because it had a living room which

could be used for sleeping accommodation. Following a complaint to the Local Government

Ombudsman, the council eventually conceded that because the living room had a gas fire and a

back boiler it could not be used for sleeping-in. It apologised for the error and agreed to backdate

priority status under the allocation scheme to the date that the tenancy had been accepted. The

ombudsman found that it was maladministration for the council to have offered a property which

would be statutorily overcrowded from the outset. Each day the family had occupied it, the council

had been committing an offence. £2000 compensation was agreed. The council also agreed to

provide guidance and training to its staff on overcrowding rules.


8

Complaint against Newham LBC Case No 11006128 29 October 2012

A council tenant had been subjected to domestic violence. She applied for an emergency housing

transfer. That would normally have resulted in a direct offer but the council's allocation scheme

provided that if an applicant had a 'property related debt' they would only have a reduced priority

and that this provision could only be waived in 'exceptional circumstances'. The tenant did have

'former tenant arrears' in respect of earlier accommodation from which the council had re-housed

her. After the re-housing, the council had allowed the tenancy to run-on for 18 months accruing

very significant rent arrears. Those arrears were taken into account in making the decision under

the allocation scheme and operated to block the transfer. The tenant used the council's complaints

procedure. Her complaint succeeded. The council accepted that it should have terminated the

earlier tenancy, about two weeks after she was rehoused. That reduced the arrears to under £140

but the complainant still did not get a management transfer and complained to the Local

Government Ombudsman. The Ombudsman decided that, but for the council's error in failing to

end the old tenancy earlier, the arrears would have been modest and would have been cleared by

the tenant in order to secure the transfer. The error had been maladministration and had caused

injustice.


9

Homelessness

UK Government

Eligibility for housing assistance

On 16 July 2012 new regulations came into effect to change legal provisions relating to eligibility

for housing assistance for some EU nationals and their families. Among other changes, they give

effect to the decisions in Ibrahim v Harrow LBC and Teixeira v Lambeth LBC.

Homelessness and eligibility

The decision of the European Court of Justice in the Zambrano gave certain EU nationals the right

to reside in the UK while their children were being educated here. From 8 November 2012 new

EEA regulations and new Eligibility regulations take effect in England. The EEA Amendment

Regulations confer rights of residence and entry on the primary carer of a British citizen who is

residing in the UK where the denial of such a right would prevent the British citizen from being able

to reside in the UK or in an EEA State. The Eligibility Amendment Regulations add persons with

this right of residence to the categories of persons who are ineligible for an allocation of housing

accommodation or housing assistance under regulations 4 and 6 of the Allocation of Housing and

Homelessness (Eligibility) (England) Regulations 2006.

Homelessness and the private rented sector

The provisions enabling local housing authorities to perform the main homelessness duty by

offering private rented sector tenancies will came into force on Friday 9 November 2012. The

change do NOT apply to people who have applied as homeless on or before 8 November 2012

and who are, on that date, being provided with accommodation in performance of a council's duties

(e.g. the provision of interim accommodation pending a decision on their application). A local

authority can only use the new power to offer "suitable" private sector accommodation. New

regulations specify which matters, including location, a council must take into account before

making a private rented sector offer. On the eve of the changes (8 November 2012), the UK

Government published new statutory guidance for local housing authorities about the new rules.

The likely effect of the changes is set out in an Impact Assessment.

Magistrates' Court

Luton Borough Council v Samuel Jackson and Elizabeth Mahia , 20 September 2012


10

The defendants applied to the council as homeless. They said they had been given notice by their

landlord to leave their private rented accommodation in Ireland when the landlord defaulted on the

mortgage. They gave a false address for the property and a false name for the landlord. The

council traced the real landlord who denied that he had required them to leave. The council

prosecuted and the defendants pleaded not guilty to offences contrary to the Fraud Act 2006 and

the Housing Act 1996. After a trial, they were convicted at Luton Magistrates' Court. Each

defendant received a sentence of 26 weeks imprisonment suspended for 18 months, together with

100 hours unpaid work. The defendants were also each ordered to pay £500 towards the council's

costs.

High Court

R(Dragic) v Wandsworth London Borough Council, 6 March 2012

The claimant had been owed the main housing duty as a homeless person. He had been offered,

but had refused, suitable accommodation. The duty ended. Later, the housing association sought

possession of the temporary accommodation he had been occupying He applied again for

homelessness assistance. The council decided that he had become homeless intentionally

because, had he accepted the suitable accommodation earlier offered, he would not again be

facing homelessness. He applied for a review of that decision but was two weeks out of time. The

council refused to extend the time limit. The claimant sought judicial review of that decision. The

High Court held that the council had made no legal error in refusing to extend time. It could not

even be said that the review would have been obviously likely to succeed. Issues of causation,

such as why the claimant presently faced homelessness, were matters on which there was scope

for reasonable disagreement. The council's decision had not been obviously wrong.

R(Fadol) v Westminster City Council, 21 March 2012

The claimant applied to the council for homelessness assistance. It decided that he was owed the

main housing duty and that he had no local connection with its area. It decided to refer his

application to Cardiff. The claimant sought a review of that decision. Cardiff notified the council that

it accepted the referral and would accommodate. The council decided to withdraw the claimant's

temporary accommodation and provide a warrant for travel to Cardiff. The claimant asked the

council to provide continued temporary accommodation for him pending the outcome of the review.

That application was refused with written reasons. The claimant applied for a judicial review. The

High Court refused permission to apply for judicial review on the basis that there were no arguable

grounds for asserting that the council had erred in law in declining to provide accommodation


11

pending review. The judge also discharged an interim injunction which had been granted on an

urgent application which had failed to mention that Cardiff had agreed to accommodate. The judge

described it as "the worst case of nondisclosure I have ever come across".

Macattram v Camden London Borough Council, 2 April 2012

The council took a lease of the claimant's house for three years, to provide accommodation for

homeless families. When the term expired, the house was empty but the lease continued as a

periodic tenancy. Later, the council stopped paying the rent and offered a surrender of the tenancy

by returning the keys to the claimant. A question arose about liability for council tax. A tribunal held

that the claimant had been liable from the expiry of the fixed term. The High Court dismissed an

appeal from that decision. The periodic tenancy that was deemed to have arisen on expiry of the

fixed term had only been a mere monthly tenancy. That meant the claimant was liable for the

council tax.

R(May) v Birmingham City Council, 20 April 2012

The claimant left her home in Slough because of domestic violence and applied to the council for

accommodation because she had family in Birmingham. In January 2010 the council accepted the

homelessness application and made an offer of accommodation which the claimant refused. On

review, the council decided that its duty had been discharged. The claimant's grandmother agreed

that she could stay with her until her name came up on the ordinary waiting list. However, in

November 2010 the relationship with the grandmother unexpectedly broke down and the claimant

was asked to leave. She made another homelessness application. The council declined to accept

the application on the basis that it was made on the same facts as the earlier application. The High

Court allowed a claim for judicial review and quashed that decision. The judge held that it had been

irrational of the council to take the view that the circumstances of the further application were

based on the same facts as when the January 2010 application had been made.

Hafiz & Haque v Westminster City Council, 3 May 2012

The council received a homelessness application from a Mr Haldar. The decision made by the

council on that application was subject to an appeal to the county court which was listed for 29

September 2011. On 24 August 2011 Mr Haldar's solicitors issued an application in the county

court for an order that he be provided with accommodation pending the hearing of that appeal. The

application was listed for 22 September. Mr Haldar attended that hearing but the solicitors failed to

do so. The application was dismissed. The judge ordered the solicitors to explain why the

application had been made and stood over the question of a wasted costs order to the main appeal


12

hearing the following week. The main appeal was dismissed but the solicitors did not attend that

hearing either. The judge made a wasted costs order in respect of the earlier application. The

solicitors applied to set that aside, unsuccessfully. They then lodged an appeal. The High Court

decided that the appeal had been lodged out of time and that, as the appellants were solicitors,

there was no good reason for not having complied with the time limit. In any event, permission to

appeal would have been refused. The application heard on 22 September had been wholly

unnecessary. By that date Mr Haldar had had temporary accommodation and the main appeal had

only been 7 days away.

R(Cranfield-Adams) v Richmond Upon Thames Royal London Borough Council, 19 June 2012

The claimant was a tenant. He applied for housing under the council's housing allocation scheme.

He was made an offer of social housing accommodation but refused it. The council's scheme

provided that the effect of refusing a suitable offer would be that the application would be cancelled

and any further application would be deferred for a period of two years. The claimant was then

made homeless and applied for accommodation under the homelessness provisions of Housing

Act 1996 Part 7. The effect of his being homeless was that he was entitled to a reasonable

preference in the allocation of housing under the council's scheme: Housing Act 1996 section

167(2)(a). The council decided that he remained subject to a deferral. The High Court dismissed a

claim for judicial review of that decision. Both the scheme and the decision to apply it were lawful

given the extreme pressure on social housing, the fact that the council had no housing stock of its

own, the need for co-operation with the local providers of social housing, the legitimate interests of

those housing providers in maximizing rent and the administrative burden upon the council when

an applicant refused an offer.

R(TJ) v Birmingham City Council, 3 September 2012

The applicant applied to the council for homelessness assistance. The council decided that she

was a person subject to immigration control and not eligible for such assistance. The applicant's

solicitors applied for a review - and for accommodation pending that review - on the basis that one

of her dependent children was an EU Citizen and that accordingly, in reliance on Zambrano v

Office National de L'Emploi (ECJ) [2012] 2 WLR 886, the applicant was entitled to the provision of

accommodation. The council declined to provide accommodation pending the review on the basis

that no regulations had been made under Housing Act 1996 section 185(2) prescribing those with

derived rights based on Zambrano as eligible, notwithstanding their being subject to immigration

control. The applicant sought a judicial review on the basis that the effect of Zambrano was that the

applicant was no longer subject to immigration control. The High Court refused a renewed


13

application for permission to apply for judicial review because it did not follow that just because a

person asserted that they enjoyed derived rights under Zambrano they were necessarily eligible

and entitled to homelessness assistance. The council had directed itself in accordance with the

Mohammed test in deciding not to accommodate pending review. (An appeal has been lodged in

the Court of Appeal).

R (Suruk Miah) v Westminster City Council, 7 November 2012

The claimant applied to the council for homelessness assistance. It decided he had become

homeless intentionally. The claimant sought a review and the provision of accommodation pending

the review. The council refused such accommodation and the claimant sought a judicial review.

The High Court decided that there was an arguable case that the refusal of accommodation

pending review had been unlawful. In particular, the council had relied on documentation

mentioned in the letter refusing accommodation which had not been mentioned in the decision

letter on intentional homelessness and had given the claimant no opportunity to comment on it.

The court continued an injunction until the trial of the claim or the completion of the review.

Richmond upon Thames London Borough Council v Kubicek, 23 November 2012

Ms Kubicek applied to the council for homelessness assistance. She said she had fled the

matrimonial home as a result of violence from her husband. The council made two calls to her

mobile phone in the course of its enquiries. It said both calls had been answered by her husband. It

decided that she was not homeless as it was reasonable for her to return home. That decision was

upheld on review. On her appeal, a judge in the county court admitted a witness statement from Ms

Kubicek which asserted that she had been told by a council officer that the two calls had never

been made. The judge directed a trial of a preliminary issue of fact. The High Court allowed the

council's appeal. The judge had been wrong to admit the evidence and wrong to direct a

preliminary hearing. On a 'point of law' appeal, the admission of fresh evidence and the contention

of error of fact had to be guided by principle. The judgment sets out what the principles are and

why they were not satisfied in this case.

Court of Appeal

Simpson-Lowe v Croydon London Borough Council, 19 January 2012

The claimant had suffered a motorcycle accident which left him with mobility issues. The DWP

awarded him disability living allowance at the higher rate on the basis that he was unable or

virtually unable to walk. The council decided that although he was homeless he did not have a


14

priority need as he was not vulnerable as a result of his physical disability. A county court judge

dismissed an appeal. The claimant sought permission to bring a second appeal to the Court of

Appeal suggesting that the case raised two points of legal importance: (1) the correct approach to

handling medical advice in the light of conflicting decisions of the Court of Appeal; and (2) the

correct approach a council should take to vulnerability when the DWP had made a decision about

disability for benefits purposes. Permission to appeal was refused by the Court of Appeal. There

was no inconsistency in earlier Court of Appeal decisions and it was settled law that a council

could take into account, but was not bound by, relevant DWP decisions on disability issues.

Sheppard v Richmond upon Thames London Borough Council, 23 February 2012

The claimant appealed against a decision that she had made herself homeless intentionally. The

reviewing officer had relied on the fact that a court order for possession of her former home had

been made because of breach of her tenancy agreement (by refusing to allow gas safety checks).

An appeal to the county court was dismissed. The claimant applied (in person) for permission to

bring a second appeal. The Court of Appeal refused that application. The council had been entitled

to rely on the possession order and had not been required to go behind its terms. There had been

no violation of the claimant's human rights in the making of the decision and no procedural failing

by the council.

Harripaul v Lewisham London Borough Council, 14 March 2012

The claimant appealed against a reviewing officer's decision on her homelessness application. The

appeal failed. The claimant sought and obtained permission for a second appeal from the Court of

Appeal. The council then agreed to withdraw the review decision and carry out a fresh review. On

that basis, the appeal was withdrawn but the parties could not agree who should pay the costs.

The Court of Appeal received written submissions and gave a full judgment explaining the

applicable principles and why, in this case, the council should be ordered to pay the costs.

Sheridan v Basildon Borough Council, 21 March 2012

The claimants had been evicted from the unauthorised encampment at Dale Farm and had made

homelessness applications. The council accepted that it owed the main homelessness duty as the

claimants were in priority need and not intentionally homeless. It made offers of council housing.

The claimants challenged the suitability of those offers on the basis that they had cultural aversions

to living in conventional housing. Both an internal review and a county court appeal were

unsuccessful. The Court of Appeal dismissed a further appeal. The council did not have sites

available for the mobile homes. It could not be required to acquire them to perform the


15

homelessness duties. Nor was the reviewing panel required to consider whether the failure to have

sites available was due to inadequate provision made for travellers in the council's area.

El-Goure v Kensington & Chelsea Royal London Borough Council, 18 May 2012

The claimant and the mother of his children were separated. The children lived with her. On the

claimant's homelessness application, the council decided that he did not have a priority need

because the children did not live with him and it was not "reasonable to expect them to reside with

him": Housing Act 1996 section 189(1)(b). A reviewing officer upheld that decision as the

claimant's position was not exceptional. The claimant said there had been an error in applying a

test of exceptionality. The Court of Appeal held that the reviewing officer had applied the statutory

language to the facts of the case. The reference to 'exceptional' simply described the outcome of a

case in which it would be reasonable for a council to provide a second home for children already

adequately housed.

Maswaku v Westminster City Council, 18 May 2012

The claimant was homeless and was owed the main housing duty under Housing Act 1996 section

193. The council made her an offer of temporary accommodation in performance of its duty. The

offer letter warned that "if you refuse this offer, you will have to find your own accommodation". The

offer was refused and the claimant sought a review of the council's decision that its duty had

ended. She said that the council had not complied with its duty under section 193(5) to inform her

of the "possible consequence of refusal" because it should have informed her that: she would be

evicted from her current accommodation; that her homelessness application would be cancelled;

that there would be no obligation on the Council to secure any further homelessness

accommodation for her; that she had the right to make a fresh application as a homeless person

pursuant to section 193(9), but may be found to be intentionally homeless on any fresh application;

and that she would be able to remain on the waiting list, but would lose priority for an allocation of

long term accommodation under Part 6. The Court of Appeal held that the council had complied

with its duty. The only "possible consequence of refusal" that needed to be stated was the one

stipulated in section 193(5) itself i.e. that a refusal would end the duty.

Konodyba v Kensington & Chelsea Royal London Borough Council, 20 July 2012

The appellant was a Polish national and a private rented sector tenant. When asked to leave, she

made a homelessness application. The council decided that she was not eligible for assistance

because although an EU national she was not exercising treaty rights as a worker or self-employed

person. She asserted that she normally worked but because of illness was temporarily unable to do


16

so. The reviewing officer decided that her condition was such that her prospects of becoming self-

employed in the foreseeable future were not realistic. A county court judge dismissed her appeal.

She brought a further appeal on the grounds that in deciding that she was "unlikely to be able to

work in the foreseeable future" the reviewing officer he had applied the wrong test; he should have

asked whether she had permanently exited the job market. The Court of Appeal dismissed the

appeal. It held that if a person is unlikely to be able to work in the foreseeable future there are no

realistic prospects of them being able to return to work. The reviewing officer had made no error of

law. (The judgment also deals with the rule that a point pursued to the Court of Appeal on one

homelessness application cannot be resurrected by the same applicant on the same facts on their

next homelessness application).

Ali v Wandsworth London Borough Council, 18 October 2012

The claimant needed to travel abroad to see relatives. She ended her private sector tenancy and

used the refunded deposit money to meet the air fare. When she returned to the UK, she had no

funds and applied to the council for homelessness assistance. It decided that she had become

homeless intentionally. A judge dismissed an appeal from that decision. The Court of Appeal

refused the claimant's application for permission to bring a second appeal. While it may have been

correct that the claimant was mistaken, in good faith, about her entitlement to continuing housing

benefit during a temporary absence, that was irrelevant to her deliberate act in terminating the

tenancy which had been motivated by the need to obtain the return of the deposit.

Pryce v Southwark London Borough Council, 7 November 2012

Ms Pryce was in the UK unlawfully. Her two dependent children were British citizens. On her

application for homelessness assistance, the council decided that she was not eligible: Housing

Act 1996 section185.That decision was upheld on review and Ms Pryce appealed unsuccessfully

to the county court. The Court of Appeal allowed a second appeal. Because of her children's need

for her to remain in the UK as their carer, Ms Pryce also had a right to reside in the UK under

Article 20 of the EU Treaty as explained by the European Court of Justice in the case of Zambrano.

It followed that she was eligible for assistance. NB: this decision will only assist applicants who

applied for homelessness assistance or social housing allocation before 8 November 2012. On that

date regulations took effect to specifically provide that those solely relying on Article 20 would not

be eligible.

Charles Terence Estates Ltd v Cornwall Council, 13 November 2012


17

The council was established in 2009 as a unitary authority and absorbed, among others, the

liabilities of a district and borough council. Those two councils had taken long leases of 30

properties from the claimant company. The properties were used to provide temporary

accommodation to the homeless. The councils had supplied loans and grants to the company to

help it enter into private sector leasing arrangements in this way. The new unitary council ceased

to pay the rents and the company sued. That claim was dismissed by the High Court. It held that

the leases had no legal effect and were nullities. They had been entered-into by both councils in

breach of their fiduciary duties to have regard to open market rents and instead had been taken at

high rents. The High Court decided that the new unitary council was no longer bound by the leases

but failed in its claim to recover rent paid and the capital monies advanced at the outset because

the company had changed its position (to its detriment) on the basis of the void leases. The Court

of Appeal allowed the company's appeal. It held that there was no justification for reading the

words "at a reasonable price" into the council's statutory power to acquire housing (Housing Act

1985 section 17). Even if the council had acted in breach of a fiduciary duty, in advancing the

grants and agreeing higher than market rents, that was not an answer to the company's claims

because the council had the legal power to enter into the leases.

Samin v Westminster City Council, 21 November 2012

The appellant was an Austrian citizen. He came to the UK in 2005 to work. After 10 months he lost

his job and had not worked since. He applied as homeless to Westminster. It decided that he did

not qualify for housing as an EU worker because he was not "temporarily unable to work". In light

of his disabilities, he was (it found) unlikely to work again. That decision was upheld on review and

an appeal to the county court was dismissed. The Court of Appeal dismissed a further appeal. The

reviewing officer had applied the right test. The question was whether there was a realistic

prospect of a return to work. That was to be resolved as an issue of fact.

Carthew v Exeter City Council, 4 December 2012

The appellant and her partner jointly bought a home. In 2008 they separated and the partner left.

He bought out the appellant's share. He then let the home to the appellant as tenant. Later, the

appellant became homeless and applied to the council. It decided that she had become homeless

intentionally because she had sold her share of the home in 2008. That decision was upheld on a

review and in the county court on appeal. The Court of Appeal allowed a second appeal and

quashed the review decision. The council had failed to address the question of whether it would

have been reasonable for the appellant to have remained in occupation as joint owner in 2008

given her means at that time. The review decision would need to be retaken.


18

European Court of Human Rights

Fazia Ali v United Kingdom, 7 November 2012

The applicant had applied to Birmingham Council for homelessness assistance. An issue arose as

to whether she had received a letter from the council offering her accommodation. It was a pure

question of fact and was decided against her by the council's own reviewing officer. On an appeal

to the county court the judge declined to deal with the issue of fact because appeal lay only on 'a

point of law'. That decision was upheld by the Court of Appeal and the Supreme Court. The

applicant complained to the European Court of Human Rights that her right of access to a fair trial

by an impartial and independent tribunal (Article 6) had been infringed. The Court has posed these

questions for the parties: (1) Did the determination of the rights and/or entitlements of the applicant

in respect of the "main housing duty" owed to her by Birmingham City Council involve the

determination of a "civil right" within the meaning of Article 6(1)? ; and (2) If so, did the

determination of the applicant's civil rights satisfy the requirement of Article 6(1) of the Convention?


Complaint against Newham London Borough Council, 8 March 2012

The complainant applied to the council for homelessness assistance. He furnished a letter from his

mother indicating that he and his family had been given two weeks' notice to leave her home.

Instead of treating the complainant as threatened with homelessness, the council told him to start

looking for alternative accommodation and gave him details of local landlords and about housing

benefit. When the notice expired, he and his family presented themselves at the council's offices.

He waited 6 hours and was seen by at least three council officers. He was told that no interim

accommodation would be provided under Housing Act 1996 section 188 and to take himself and

his family to the police station. The police could not help so the family slept in a car. No decision

was made on his application until 2 months later when the council accepted it owed a full duty. The

council's reviews manager told the ombudsman that "verification of homelessness is a pre-requisite

to providing interim accommodation" but other staff later told the ombudsman that that was not in

fact council policy and that they applied the legal test of whether there was reason to believe an

applicant "may" be homeless. The Ombudsman found extensive maladministration in the council's

handling of almost every aspect of the homelessness application

Complaint against Southwark London Borough Council, 22 May 2012


19

The complainant was a French national who was a disabled person with two children. She lived in

private rented accommodation. In April 2009 her landlord served a valid Housing Act 1988 section

21 notice requiring her to leave and later began proceedings for possession. She approached the

council to make a homeless application but was told to "come back when the court had made an

order for possession". The court made an order to take effect on 10 September 2009. She went

back to the council without success. A council officer admitted that some of its caseworkers "may

advise applicants that nothing can be done for them until they have an eviction date" i.e. a bailiff's

appointment. The council also decided that the complainant was not eligible for homelessness

assistance as she was not a 'worker'. She sought a review and asked for accommodation pending

review. The council then provided accommodation and on 30 November 2009 notice was given

that the review had succeeded. The ombudsman found extensive maladministration by the council

in its handling of the homeless application including: failure to keep proper records; failure to

decide whether it was obliged to provide interim accommodation prior to its decision on the

application; failure to properly investigate the application; and excessive delay in handling

complaints about its poor service. The council agreed to provide additional training to

homelessness staff on taking homeless applications, conducting homeless enquiries and offering

interim accommodation. It also agreed to pay substantial compensation

Complaint against Dover City Council and Kent County Council, 31 July 2012

A homeless 16 year old boy, who had previously been in care and had drug-related issues, applied

to the council as homeless in January and June 2009. The council should have accepted the

applications and applied a joint protocol agreed with the county council for dealing with homeless

children in need. The Local Government Ombudsman found that: (1) in January 2009 the housing

officer should have accepted he was homeless and provided suitable temporary accommodation.

The failure to do so was contrary to law and so maladministration. The housing officer did not

follow the Joint Protocol and did not contact Kent Council's children's services. This was also

maladministration; (2) in June 2009 a specialist housing officer did not accept him as homeless.

This was contrary to law and so maladministration. She took a month before contacting social

services. This was contrary to the Joint Protocol and was maladministration; (3) the council did not

give him written decisions about his homelessness and he could not, therefore ask for a review or

appeal. This was contrary to law and so maladministration; (4) the council twice offered bed and

breakfast. This was contrary to statutory guidance, contrary to what it says is its own policy, and

was maladministration; (5) the council did not help him go on the housing register until June 2009.

It offered him a flat two months later. The failure to help him register in January 2009 compounded

the maladministration of refusing to treat him as homeless; (6) after offering a flat the council was


20

obdurate in refusing - for four weeks - to accept Kent Council as a guarantor. There was no

evidence that it considered other options or the impact of its position on a young man who was still

a child, living alone in a tent and suffering physical and mental ill health as a result. It only changed

its position when Shelter intervened and threatened legal action. The Ombudsman recommended

that the councils between then pay £10,100 compensation.

Complaint against Hounslow London Borough Council, 28 August 2012

The local government ombudsman upheld a complaint made by a single homeless man with

mental health issues who had applied to the council for assistance with accommodation. She found

maladministration causing injustice in that the council had: (1) failed to take a homelessness

application when the complainant first approached it, and did not do so for a further two months;

(2) once it had taken an application, delayed reaching a decision on it for approximately three

months; (3) did not properly respond to the complainant's concerns about his temporary

accommodation; (4) failed to keep him properly updated about the progress of his application; and

(5) left the complainant in bed and breakfast accommodation for around five months longer than

would otherwise have been the case. The Council agreed to pay the complainant £500, plus a

further £250 to recognise his uncertainty and his unnecessary time and trouble, and to review its

procedures.

Complaint against Newham London Borough Council, 27 November 2012

The complainant lived with her sister. When her sister to her to leave, the complainant applied to

Newham council for homelessness assistance. It offered her an appointment for an interview two

months later. It failed to even consider providing interim accommodation for the complainant and

her child. The Local Government Ombudsman found that the council had failed to comply with the

Housing Act 1996 Part 7 and the Code of Guidance. She recommended £250 compensation, an

apology, a backdating of a housing application to the date of the first approach, and a review of the

council's handling of homelessness applications.

Complaint against Croydon London Borough Council 12 December 2012

A woman lived with her young children and her partner in private rented accommodation. Three

unknown men armed with hammers and knives broke into their home and seriously assaulted

them. The man was hospitalised and the woman and children fled to her mother's home before

applying to the council as homeless on 28 April 2010. The council failed to offer interim

accommodation until June 2010. It failed to notify a decision on the application until 19 November

2010. The only accommodation offered during that time was bed and breakfast, despite the fact


21

that the family included dependent children. The Local Government Ombudsman found extensive

maladministration. She recommended an apology, £2500 compensation and a review of policy and

practice on handling homelessness applications.


22

Further Information

British and Irish Legal Information Institute

http://www.bailii.org


http://www.lgo.org.uk

UK Legislation

http://www.legislation.gov.uk


23

Neil Morland Housing Consultant Ltd

Specialist advice on homelessness, housing needs and lettings.

We provide:

• Support to improve outcomes

• Help to achieve more effective and efficient results

• Assistance with strategic and operational activities

• Advice on maximising the use of resources

We offer:

• Knowledge across a variety of housing issues

• Skills covering a mixture of business management principles

• Experience of a range of legal topics

Contact

Phone – 0781 693 5620

Email – [email protected]

Website – www.neilmorland.co.uk

Registered office – 78 Borough Road, Altrincham, Greater Manchester, WA15 9EJ

Company number – 7776084

VAT number – 135466214

Allocation of Housing Accommodation and Homelessness Case ... of Housing Accommodati… · On 29...

Documents

Transcript of Allocation of Housing Accommodation and Homelessness Case ... of Housing Accommodati… · On 29...