High Court issues ruling on ‘suitability’ of B&B accommodation for homeless family

His Honour Judge Tindal has heard a High Court case concerning homelessness on which be could find no direct authority.

He found Sandwell Metropolitan Borough Council had been in breach of its duty to provide suitable interim accommodation but dismissed two other grounds argued by the claimant.

HHJ Tindal, sitting as a judge of the High Court, said the judicial review concerned the suitability of bed and breakfast accommodation for homeless families under Part VII Housing Act 1996 and the Homelessness (Suitability of Accommodation) (England) Order 2003 .

“There is effectively no direct authority on the 'suitability' of B&B accommodation for families under the 2003 Order even over the last 20 years,” he said.

“This may be because even if homeless families are initially provided with B&B accommodation, they are often moved into other accommodation once authorities are 'reminded' of what I shall call the '6-week limit' in the 2003 Order.”

This though did not happen with the claimant who had spent 26 weeks in B&B accommodation with her nine-year-old son C.

HHJ Tindal said: “Whilst in some of those respects this is an unusual case, it raises three questions of wider significance which from the researches of counsel and myself have not previously been decided:

• To which homeless applicants under the HA does the 2003 Order apply ?
• If the 2003 Order does apply to a homeless applicant, when and for how long will B&B accommodation be 'suitable' for them under Part VII HA ?
• Once B&B accommodation becomes 'unsuitable' for a homeless applicant, when will a mandatory order to require an authority to provide them 'non-B&B accommodation' under s.188 HA be appropriate following R(Imam) ?

The claimant and C had lived in a flat in Sandwell since 2016 but in October 2023 were required by the landlord to leave in the early hours of the morning due to what they were told was a flood and occupation of the flat being prohibited by the fire service.

She applied as homeless immediately after she was locked out of the flat by the landlord and Sandwell accommodated her at a hotel in Birmingham, where she and C have their own bedroom and bathroom, access to communal cooking facilities and a microwave in their room.

She said this was unsuitable because of C's various food allergies, which prevented them using communal cooking facilities.

Sandwell said though they were placed in the hotel because of C's allergies – as the claimant could prepare meals to suit C's diet, rather than use general catering.

In November 2023, the claimant’s solicitors sent a pre-action protocol letter to Sandwell making two contentions.

The first was that the hotel was not 'suitable' under the Housing Act, referring to the 2003 Order and the Homelessness Code of Guidance and contending that for applicants with family commitments B&B accommodation is not suitable unless no other accommodation is available and even then, only for a maximum of six weeks.

Her second point was that Sandwell failed to make a s.184 Housing Act decision on her homelessness application even though it knew she and C could not live in the flat.

Following further disputes with Sandwell, she issued a judicial review claim in November 2023 with three grounds of challenge.

These were that Sandwell was in breach of its duties to: provide suitable interim accommodation under s.188 HA, primarily due to the 2003 Order; have due regard to its obligations under the Equality Act 2010 s.149 because of C's disability; to have due regard to its obligations under s.11 Children Act 2004 by failing to safeguard and promote C's welfare. She also applied for interim relief and a mandatory order to provide her with suitable (accommodation.

Sandwell’s defence was that the B&B accommodation was suitable for the period the claimant and C were likely to occupy it, and was the only accommodation available.

It had not accepted C had a disability and there was no risk to him at the hotel, while the Children’s Act s.11 “did not render unsuitable what was suitable”.

HHJ Tindal said: “The real core to this case is the claimant's 'Ground 1': that the defendant is in breach of its duty to provide suitable interim accommodation.”

He accepted Sandwell’s evidence there has been no alternative accommodation to the hotel available for both the claimant and C and it rationally considered the hotel suitable for them.

“Nevertheless, once the claimant and C had been 'residing' in the hotel for six weeks…from then on, the hotel has been deemed by Art.3 to be unsuitable for them.

“Accordingly, [Sandwell] has been in breach of statutory duty under s.188 HA to secure 'suitable accommodation' for them since 20 November 2023.”

The judge said the 2003 Order operates under s.210 Housing Act and qualifies 'suitability' in s.206 by specifying the circumstances in which accommodation will not be regarded as suitable, the main provision being Art.3, but subject to the exceptions in Art.4.

“However, the latter makes clear it operates as one exception if 'non-B&B accommodation' is not 'available for their occupation' but 'only for a period or total of periods not exceeding six weeks’”, he said.

HHJ Tindal said he would have made a mandatory order but since Sandwell had agreed to accommodate the claimant and C in non-B&B accommodation from 22 April 2024 this was not needed.

He dismissed the ground argued about C’s disability as “whilst it is not disputed that C suffers from eczema and food allergies to nuts, bananas and tomatoes and has an 'epi-pen', that is really the extent of the information we have about C's health conditions”.

But in the absence of direct evidence it was “not possible to be satisfied that C was and is 'disabled' under the Equality Act” and therefore Sandwell could not have breached the public sector equality duty in respect of C's health conditions. Ground 3 could not succeed on its own”, he added.

Mark Smulian