Case Comment: Nzolameso v City of Westminster  UKSC 22
12 Wednesday Aug 2015
Section 206 of the Housing Act 1996 (‘the 1996 Act’) provides that a housing authority, when discharging its duty to house a homeless person to whom it owes what is known as the main housing duty, must provide accommodation that is suitable. Under Section 208 of the 1996 Act, a housing authority has a related duty to house homeless people in its area ‘so far as reasonably practicable’. Article 2 of The Homelessness (Suitability of Accommodation) (England) Order 2012 provides that when determining the suitability of accommodation, the housing authority must take into account, where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority. The Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 of November 2012 underlines the obligation to secure accommodation as close as possible to where a household had been living.
In recent years, the housing shortage has led to a significant increase in ‘out of borough placements’, particularly in London. According to evidence provided in the case of Nzolameso v City of Westminster, in October 2013 48% of the temporary accommodation provided Westminster was outside the borough. The Supreme Court has now ruled on such ‘out of borough’ placements and has given guidance to councils.
Since December 2008 Ms Titina Nzolameso, who suffers from numerous long-standing health problems, and her five under age children had been accommodated in a privately rented four-bedroom house provided by the City of Westminster (‘Westminster’) in discharge of its homelessness duties under Part VII of the 1996 Act. Ms Nzolameso’s rent of £1,150 per week was covered by housing benefit. In 2012 a cap, known as the local housing allowance, was placed on Ms Nzolameso’s housing benefit payments. The house became unaffordable to her, and she was evicted in November 2012.
Ms Nzolameso applied to Westminster for homelessness assistance. In January 2013 Westminster accepted a duty to house her under Section 193(2) of the 1996 Act (the main housing duty). Subsequently, Westminster offered Ms Nzolameso and her family a five-bedroom house in Bletchley in Hertfordshire. Westminster informed Ms Nzolameso that there was a severe shortage of accommodation in Westminster and it was not reasonably practicable to offer her a home in Westminster. Ms Nzolameso rejected the offer because it was too far away from her children’s schools, from people helping her with her children and her GP. Westminster took the view that because none of the children was of GCSE age, the children could move schools. Westminster concluded that its duty to house Ms Nzolameso had ended because she had refused the offer of suitable accommodation.
Ms Nzolameso sought a review of the decision. The reviewing officer confirmed that the property in Bletchley was suitable and Westminster’s housing duty had come to an end. The decision letter stated:
“As you are aware Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council’s Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.”
Ms Nzolameso’s appeal against the decision was unsuccessful in the County Court, as was her further appeal in the Court of Appeal. The Court of Appeal held that the reviewing officers must be taken to have been aware of the resources available to the council and the pressure on those resources; it was not necessary to describe such resources and pressures on them in detail. Westminster was entitled to take a broad range of factors into account in deciding whether it was reasonably practicable to provide accommodation to Ms Nzolameso within its own district.
It is to be noted that whilst Ms Nzolameso was waiting for her case to be heard before the Court of Appeal, Westminster provided accommodation for her children under the Children Act 1989. The children were separated between three different foster families, and care proceedings were begun.
The Supreme Court Decision
In a unanimous decision, the Supreme Court allowed the appeal and held that Westminster’s decision letter, in particular Westminster’s reference to its duty under Section 208 of the 1996 Act in what the Court described as a ‘standard paragraph’ (cited above), contained little to suggest that serious consideration had been given to the authority’s obligation before the decision was taken to offer Ms Nzolameso and her family accommodation in Bletchley. No questions had been asked how practicable it would be for the family to move out of the area. Nor had enquiries been made to see whether school places would be available in Bletchley and what Ms Nzolameso’s medical needs required. The decision was based on the premise that because there was a shortage of accommodation in Westminster, accommodation could be offered anywhere else , unless Ms Nzolameso could show that it was necessary for her and her family to remain in Westminster. There was no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible [para. 36 of the judgment].
In addition, the Supreme Court found that the decision also showed that Westminster had not discharged its obligations under Section 11(2) of the Children Act 2004, which required Westminster to discharge its functions (including housing functions) having regard to the need of safeguard and promote the welfare of children.
The Supreme Court issued guidance to local authorities to apply when explaining their decisions as to the location of properties offered to applicants. Local authorities should have a policy for procuring sufficient units of temporary accommodation to meet anticipated demand, such a policy reflecting the housing authority’s statutory obligations under both the 1996 Act and the Children Act 2004. Secondly, local authorities should have a publicly available policy for allocating units of temporary accommodation, explaining the factors which would be taken into account in offering accommodation in the borough, close to the borough or further away.
This judgment will have far-reaching implications for local authorities. Not only will they have to draw up policies, they will also be required to include in their decisions evidence of search for accommodation with the borough and close to the borough before an offer of accommodation further away from the borough can be justified. A standard letter will not be sufficient, nor will a standard approach of sending applicants out of borough merely because there is a shortage of accommodation within the borough.
This post originally featured on 3 Dr Johnson’s Buildings Chambers website and can be accessed here.