London borough wins court battle over offer of accommodation near Milton Keynes

The Court of Appeal has upheld a London borough’s offer of accommodation near Milton Keynes to a homeless mother and her five children to whom it owed a housing duty.

In the case of Nzolameso v City of Westminster [2014] EWCA Civ 1383 the appellant had until November 2012 lived in a four-bedroom house in Westminster. The rent was covered by housing benefit in the form of local housing allowance.

Following the reduction in 2012 of the amount of housing benefit, Ms Nzolameso became unable to afford the rent on her existing property. As a result she and her five children became homeless.

The council accepted that it owed her the main housing duty under s. 193 of the Housing Act 1996 and offered her temporary accommodation in the form of a five-bedroom house in Bletchley, near Milton Keynes.

Ms Nzolameso refused that offer. She said she had lived in Westminster for over four years and had many friends who provided her with emotional and practical support, in particular with looking after her children.

The appellant argued that the house in Bletchley was too far from her children's schools and that she did not know anyone in the area who would give her the same support as her friends in Westminster.

However, as a result of her rejection of the offer of what it considered to be a suitable property, the local authority decided that it had discharged its duty towards Ms Nzolameso and was no longer under a duty to make accommodation available to her.

She then asked for a review both of the decision that the house at Bletchley was suitable for her and of the decision that Westminster had discharged its duty to provide her with accommodation.

A review was carried out, but the reviewing officer upheld both decisions.

Ms Nzolameso appealed against those decisions under s.204 of the 1996 Act. His Honour Judge Hornby in the Central London County Court expressed sympathy for Ms Nzolameso, but he upheld the decision of the reviewing officer and dismissed the appeal.

The Court of Appeal has now rejected her appeal against the decision in the County Court.

The appellant’s QC, Jan Luba, sought, amongst other things, to argue that in discharging its duty, Westminster was not allowed to take into account broader considerations, such as financial pressures, administrative difficulties or the imminent likelihood of a need to provide accommodation to others whose circumstances might give rise to a more pressing need for them to remain in or closer to its own district.

The key issue before the Court of Appeal was what factors could properly be taken into consideration by a local housing authority when deciding whether it was reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that the accommodation may be of no more than a temporary nature.

Lord Justice Moore-Bick said: “I accept that section 193 [of the 1996 Act] imposes on a local housing authority a personal duty to a homeless person who falls within it, I do not think it follows that it is obliged to consider only those factors relating to the particular applicant when deciding whether it is reasonably practicable to make an offer of accommodation within its own district.

"Mr. Luba's submission, if correct, would in my view put local housing authorities in an impossible position and would impose on them obligations to which Parliament cannot have intended to subject them.”

The judge said it would have required local housing authorities to make available any suitable accommodation which happened to be available within their own districts at the time they were called upon to make a decision on an application, without regard to how the needs of the applicant's household compared to those of others to whom they already owed a similar duty, or to the circumstances of those with a greater need to remain within their districts from whom they could expect to receive similar applications in the near future.

“Read in conjunction with paragraph 48 of the Supplementary Guidance [in relation to the requirements of the Homelessness (Suitability of Accommodation) (England) Order 2012], it would require the housing department (in this case the Temporary Lettings team) to scour not only the authority's own district but also the districts of all neighbouring authorities in an ever widening circle in an attempt to find accommodation from any source that might be suitable to the applicant's needs,” Lord Justice Moore-Bick Said.

“That would impose an unreasonable and disproportionate burden on councils, which do not have the human or financial resources to undertake a search of that kind for every applicant.”

The judge added that what was reasonably practicable in any given case was a matter for the housing authority itself to decide, provided its decision was not Wednesbury unreasonable.

“In my view, when considering whether it is reasonably practicable to provide an applicant with suitable accommodation in its own district, a housing authority is entitled to have regard to all the factors that have a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature,” Lord Justice Moore-Bick found.

The Court of Appeal judge said he accepted that the court should be “astute to ensure that local housing authorities give proper consideration to their duty under section 208 and do not merely apply policies which lead to accommodation being provided outside their own districts in a routine and unthinking manner”.

On the other hand, he said, many authorities, of which Westminster was one, were under great pressure to discharge their statutory obligations and should not be prevented from making sensible use in an orderly way of the housing stock available to them, whether within or outside their own districts.

Lord Moore-Bick also rejected an alternative submission from the appellant’s QC that sought to rely on paragraph 48 of the Supplementary Guidance.

The judge said the reviewing officer could not be criticised for having failed to make express reference to the paragraph. “In my view there is no basis for inferring that she did not have it in mind or that she was unaware of the desirability of accommodating Ms Nzolameso as close to Westminster as was reasonably practicable.”

It had not been necessary, he suggested, for the reviewing officer to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to Ms Nzolameso.

Dismissing the appeal, Lord Justice Moore-Bick said he agreed with the county court judge that the reviewing officer did not fail to take into account the requirements of s.208 or the guidance given by the Secretary of State in relation to it when reaching her decision that the accommodation at Bletchley was suitable for Ms Nzolameso, despite its location, and that her decision was not unlawful.

Cllr Daniel Astaire, Westminster City Council cabinet member for housing, said: “This is a victory for common sense. Councils have a raft of considerations to take into account when finding accommodation, not least their duty towards other people who are already waiting for a home.

“Had this ruling gone the other way, it would have forced local authorities to disregard the needs of those who had a more pressing need to stay in their area. It would also have required councils to scour every neighbouring borough until they found an available property – whether or not it was suitable – imposing an unreasonable burden on local authority resources.”