Update: housing law

Eligibility

Although decided in the context of security benefits, Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 is relevant to eligibility for housing and in particular to whether applicants who are EU citizens have the right to reside, such that they are eligible for assistance under section 185(2) and regulation 5 of the Allocation of Housing and Homelessness Regulations 2006 (SI 2006/1294 as amended). The Court of Appeal held that an EU national who was lawfully present in the UK but was not a qualified person for the purposes of regulations 5 and 14 of the Immigration (European Economic Area) Regulations 2006 (for instance because they were no longer economically active) could not be said to be exercising the right to reside for the purpose of social security legislation. An argument that the legislation was discriminatory under Article 12 of the EU treaty (relying on Trojani v Centre Public d'aide sociale de Bruxelles C-456/02) failed.

In Eren v Haringey LBC [2007] EWCA Civ 409 a homeless applicant who had previously applied for assistance to Enfield London Borough Council complained that Haringey had unlawfully adopted Enfield's findings without coming to its own conclusion on the facts. The Court of Appeal held that an authority may refer to '“ but cannot rely solely upon '“ a previous authority's decision and in the present case Haringey had set out reasons for its decision and had not slavishly relied on Enfield's earlier decision.

In Shala v Birmingham CC [2007] EWCA Civ 624, the Court of Appeal provided useful guidance on the use of medical advisers by local authorities when making homelessness decisions.

(i) Although it is acceptable for authorities to take specialist advice about medical evidence, care has to be taken not to appear to be using professional medical advisers simply to provide or shore up reasons for not accepting that an appellant is vulnerable.

(ii) There is no harm and some good in medical advisers directly addressing those matters within their professional competence about which the local authority have to make a decision, so long as both they and the local authority recognise that it is for the latter to make its own appraisal of every opinion.

(iii) Where an authority's medical expert is not a qualified psychiatrist, a local authority weighing his comments against the report of a qualified psychiatrist must not fall into the trap of thinking that it is comparing like with like; the authority's expert has the function of enabling the authority to understand the medical issues and to evaluate for themselves the expert evidence.

(iv) Absent an examination of the patient, the authority's medical adviser's advice cannot itself constitute expert evidence of the appellant's condition.

(v) Where an authority's medical adviser has not examined an applicant, he may, with consent, speak to the applicant's medical advisor on an informal basis about matters which need discussion.

New age traveller

In Steward v Royal Borough of Kingston-upon-Thames [2007] EWCA Civ 565 a self-styled new age traveller left rented accommodation and moved into a caravan. She subsequently occupied and was evicted from a succession of sites. The authority found her intentionally homeless for giving up the rented accommodation. The Court of Appeal held that the authority had been right to conclude that her occupation as a trespasser on a series of caravan sites did not amount to settled accommodation as that occupation had been unauthorised. In addition the special protection to be afforded to gypsies and travellers (see Chapman v UK [2001] 33 EHRR 18) did not assist in the context of the simple question of fact that the authority had to decide, namely whether the applicant had obtained settled accommodation. In any event, if the authority had been required to afford additional protection to gypsies, the appellant was not a gypsy but simply someone who had chosen an itinerant lifestyle.

Procedural fairness

Reg 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 entitles an applicant to additional procedural rights if, on review, the reviewer believes that the original decision had a deficiency or irregularity in it (or in the manner in which it was made) but is nevertheless minded to find against the applicant. In Rowley v Rugby BC [2007] EWCA Civ 483 the applicant asserted that she gave up accommodation because her landlord had orally asked her to do so. The authority notified the applicant of the result of its enquiries in a 'minded-to' letter asserting that the applicant had given up her tenancy, had not been given any written notice to leave and that the landlord had told the applicant that he was 'thinking' of selling. The letter invited the applicant to provide further information or, if appropriate, to sign a return slip confirming her agreement of the facts. She later returned the slip duly signed. The authority subsequently found the applicant intentionally homeless for abandoning her home without having been asked to leave, a decision that was upheld on review. The applicant appealed contenting there had been a deficiency in the s184 decision triggering reg. 8(2) as the decision had failed to consider the applicant's original assertion that oral notice to quit had been given by the landlord. The Court of Appeal held that there had been no deficiency as the applicant's agreement with the facts set out in the minded-to letter meant that the authority was no longer required to consider the earlier assertion that an oral notice to quit had been given.

In Gilby v Westminster CC [2007] EWCA Civ 604 the authority found that the applicant was intentionally homeless from accommodation given up in 2001 and that since then she had found no settled accommodation despite having occupied accommodation in a flat rented by her sister. The authority initially held, in its section 184 decision, that the applicant had illegally sublet the flat from her sister and that it could therefore not be settled accommodation. On review, after further inquiries, it held that there had been no subletting, that the occupation of the sister's flat was as a licensee, that such occupation was therefore transient and that the sister's flat was therefore not settled accommodation. The applicant appealed on the ground that oral representations should have been allowed prior to the review pursuant to reg. 8(2) (see above), the reason for finding that the sister's flat had not been settled accommodation having altered. The Court of Appeal disagreed, holding that the question being addressed by the authority was not the legal character of the applicant's occupation of the flat but whether it constituted settled accommodation. Both decisions addressed that question and both found that her occupation of the flat was precarious, albeit for different reasons. There was consequently no deficiency or irregularity triggering reg. 8(2).

Intentionally homeless

In Denton v LB Southwark [2007] EWCA Civ 623 the Court of Appeal looked at intentionality where a teenager or young adult is asked to leave the family home for bad behaviour. It held that it was essential that when people live together they show appropriate respect for each other's needs and follow any requests that one reasonably makes to the other. In the present case the appellant's mother had reasonably expected him to behave and not to cause a nuisance to her or others. He did not do so. Accordingly, he was asked to leave because of his bad behaviour and became intentionally homeless. In Osei v Southwark LBC [2007] EWCA Civ 787 the Court of Appeal decided that the authority were entitled to find that the applicant was intentionally homeless where he had surrendered his tenancy of an overcrowded room in Spain and moved with his family into equally overcrowded accommodation in this country. It was reasonable for the applicant and his family to continue to occupy the property in Spain at least until he had secured alternative accommodation. Even if the authority had taken into account and found as a fact that the Spanish property was overcrowded, it would not have affected their decision that it had been reasonable to continue to occupy it because the property in this country was equally overcrowded.

Offer of accommodation

In Williams v Birmingham CC [2007] EWCA Civ 691 the authority made an offer of accommodation, which the appellant refused on the basis that it was too far from her son's school and that she could only get to and from the school by taking eight different buses each day. The authority determined that the property was nevertheless suitable and that they had discharged its duty towards her. The appellant requested a review. The reviewing officer upheld the decision. He found that the school was not too far away and that, in any event, the son could relocate to a school nearer to the property offered without adversely affecting his education. The Court of Appeal upheld the reviewing officer's decision. He was right to conclude that, if the journey was too onerous, the son could move schools.

In Abdullah v City of Westminster [2007] EWCA Civ Div 604, an offer of accommodation was made, which offer was not in the area specified by the appellant. She accepted the offer but requested a review of its suitability. She provided medical evidence that it would be advantageous for her to be near her family and friends to receive support and assistance. The reviewing officer nevertheless found that the property was suitable. That decision was upheld by the Court of Appeal. The reviewing officer had taken into account the appellant's submissions and had been entitled to decide that the medical evidence stated no more than that it would be advantageous for the appellant to live near her family and friends, not that it was necessary. It was also open to the reviewer to assume that social services would provide assistance where necessary, regardless of where the appellant lived.

In Omar v Birmingham CC [2007] EWCA Civ 610, the Court of Appeal held that, although section 193(7A) of the HA 1996 provided that an offer of accommodation under Part VI could only discharge the authority's duty to a homeless person if it informed the applicant in writing that it was a final offer for the purposes of Part VI, the authority was not required to slavishly follow the wording of s193(7A) when giving such notice. The authority's indication that the offer was a final offer of permanent accommodation was sufficient to convey that the offer was being made under Part VI. The authority was not required to refer to Part VI expressly.

In Ahmed v Leicester CC [2007] EWCA Civ 843 a Somali applicant refused a final offer of accommodation in discharge of the section 193 duty. She did so because she had been threatened by local youths with firebombing if she moved in. The authority held that the accommodation was suitable and that it was reasonable for her to have accepted it (see section 193(7F)).

The applicant requested a review providing evidence that Somalis were targeted on the estate in question and asserting that no one could have been expected to accept accommodation in the light of the threat made. The authority made extensive inquiries of various agencies and decided on review, in the light of these inquries evidence, that notwithstanding the threat made no violence would have occurred had the applicant accepted the accommodation. It was therefore both suitable and reasonable to have accepted it.

On appeal the applicant challenged the authority's approach to whether it was reasonable to accept the accommodation. She asserted that although an objective question, it was one that had to be decided in the light of the facts known to the applicant at the time of refusal. It was not appropriate to decide the reasonableness of her decision by reference to information of which she was not or could not have been aware. The Court of Appeal dismissed her appeal holding that in reaching its decision, the authority is not required to put itself into the position of the applicant, nor was it obliged to limit the information to which it had regard to that which the applicant knew or ought to have known at the date of refusal.

In R (Abdi) v Lambeth LBC [2007] EWHC 1565 (Admin), the High Court held that it is lawful for a local authority officer, who made the decision as to what duty was owed under HA 1996, s184, to also determine the applicant's request for interim accommodation pending review under s188(3). On the facts there was no appearance of bias in the officer's decision.