Housing Update: Homelessness – guidance on out-of-borough placements
Homelessness: guidance on out-of-borough placements (Alibkhiet v London Borough of Brent v City of Westminster )
This was an appeal heard jointly with the case of Adam v City of Westminster whereby the Court of Appeal offered clarification in relation to local housing authorities’ discharging their housing duties through providing out of area accommodation. The appellate court not only upheld the decisions of Westminster and Brent but set out key principles in determining when out-of-borough accommodation amounted to proper discharge of the s.193 duty.
Both Appellants, Mr Alibkhiet and Ms Adam, had made applications to Brent and Westminster councils, respectively, seeking accommodation and the local authorities had accepted a s.193 Housing Act 1996 duty “to secure that accommodation is available for occupation by the applicant.” S.208 (1) provides that so far as is reasonably practicable housing authorities shall secure accommodation within their own district. However, both authorities sought to discharge the s.193 duty through making offers to the applicants of private rented accommodation which was outside of the borough.
Mr Alibkhiet was an Eritrean national given leave to remain in the UK in 2014 and in September 2016 he was joined in the UK by his wife and four year old daughter. He made a homelessness application to Brent Council the same month and was on job-seeker’s allowance, having previously worked as a cleaner. Brent Council maintains a Temporary Accommodation Placement Policy which deals with the priority of applicants for accommodation either in-borough or in Greater London. Certain categories of homeless persons are given priority in obtaining accommodation either in-borough or in Greater London. It has always been accepted that Mr Alibkhiet is not within any of these categories. However, the policy also states that “any other special circumstances will be taken into account.” Mr Albkhiet was interviewed by a housing officer in January 2017 and he accepted that there were no reasons why he should remain in Brent or London; his only real concern was for his daughter who had special needs. As set out in the Judgment  “The officer explained that there was a lack of affordable housing in London, which was in the throes of a housing crisis; and offered Mr Alibkheit a flat in Smethwick in the West Midlands. Mr Alibkhiet objected to that offer because his support networks were in Brent; there was no Arabic community in the Birmingham area; there were fewer job opportunities and he was planning to get work in a restaurant as a cleaner. The officer told him that he could take up the offer and request a review. An offer letter was sent to him on the following day.” After inspecting the Smethwick flat, Mr Albkhiet refused the offer. A review was requested and was deemed unsuccessful in a detailed 16 page decision.
Ms Adam was homeless and a divorced mother with three children aged under 11 at the time. Upon Westminster accepting its duty to house Ms Adam she was provided temporary accommodation initially, approximately a mile away from her children’s school. Westminster had an accommodation policy, renewed annually, which sets out all key principles in relation to accommodating homeless households and when out of area accommodation may be offered. Ms Adam and her family were eventually offered accommodation in the London Borough of Sutton, some 15 miles away from the children’s school and the City of Westminster. As set out in the Judgement  “The housing officer concerned noted that Ms Adam was number 696 on the housing list and was approximately 15 years away from an offer of social housing. He noted that there was one suitable unit of accommodation within the borough; but that it was earmarked for a household higher up the priority list. He also considered the commuting distance between the offered accommodation and the children’s school; and considered that it would be unreasonable. However, he noted that there were local schools to which the children could transfer. He went on to consider Ms Adam’s medical needs; what support network she had locally; whether anyone in the household was receiving support from social services; and the amenities in the vicinity of the offered accommodation. He concluded that there was no impediment to the offer of accommodation in Worcester Park.” A review was sought, supported by 9 pages of representations, primarily relating to the children’s commute to school and Ms Adam’s health issues, but the offer was held as suitable.
Mr Alibkhiet and Ms Adam challenged their respective decisions and reviews under s.202 HA.
The Court of Appeal, in a judgment that will be welcome to Local Authorities, held the following ;
i) A housing authority is entitled to take account of the resources available to it, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in its area, and the practicalities of procuring accommodation in nearby boroughs.
ii) If there is available accommodation within-borough, it does not follow that the authority must offer it to a particular applicant because it may be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future.
iii) The decision in an individual case may depend on a policy that the authority has adopted for the procurement and allocation of accommodation.
iv) The policy should explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away.
v) The policy should be publicly available.
Lewison LJ, giving the leading judgment, went on to say that “If a policy is lawful, and is properly applied, that will usually be sufficient to explain why a decision has been taken.” . Essentially there is no requirement for the authority to give reasons for offering accommodation out of borough at the time of making the offer. A review decision will of course address the specific grounds highlighted, but a thorough policy is sufficient when the offer is made and does not require additional justification.
The Court of Appeal, in no uncertain terms, recognised the pressure placed upon local authorities in providing accommodation at the very opening of the Judgment by Lewison LJ; “You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London; and that local government finance is severely stretched.”
Whilst this is certainly a welcome decision for local authorities, it also serves to emphasise the importance of properly drafted, reviewed and informative policy documents that must be readily available to prospective tenants and the significance of properly applying and referring to those policies in reaching such decisions.