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Lawful consequences
Published 04 September 2023
The House of Lords has created a world of uncertainty in ruling that it is not unlawful to classify people ‘homeless at home’, says James Stark.
People think homelessness is about living on the street. But it’s not just about people sleeping in shop doorways – it’s a far bigger problem than most of us realise.
The number of rough sleepers is dwarfed by the ‘homeless at home’ – people trapped in overcrowded or poor accommodation that threatens their health and well-being.
The recent House of Lords decision in Birmingham City Council v Ali and others will have a profound effect on the duties owed to the ‘homeless at home’.
It seems that its impact may not have been fully appreciated by the House of Lords, which concentrated on the appeal in which judgment was jointly given in that of Moran v Manchester City Council. In the Moran case, the Court of Appeal had ruled that a women’s refuge counted as accommodation under the Housing Act 1996 and that Mrs Moran could be held to be intentionally homeless after being evicted for a row with a member of staff.
In the Birmingham cases, several large families were found to be homeless on the grounds that it was not reasonable for them to continue to occupy overcrowded homes – and the local authority accepted a full duty to them. But Birmingham council said that it had no accommodation suitable for large families, gave them Group B priority on the allocation scheme and left them homeless at home. Some of the families had been homeless at home for a number of years.
Justice Collins found that once the full duty criteria were satisfied there was an immediate duty to secure suitable accommodation for them and ordered that offers of suitable accommodation be made in a week. He also decided that it was irrational for the homeless at home to be in a lower priority group than the homeless but in temporary accommodation. The Court of Appeal upheld his decision.
The House of Lords found that the test whether accommodation was reasonable to continue to occupy did not involve whether you were homeless merely in the present. The use of the word ‘continues’ in the Act meant it looked to the future – that is, accommodation that was not reasonable to occupy indefinitely.
What the Lords of Appeal said;
‘We would allow both of these appeals.
In the Ali case, we would declare that it is lawful for the council to decide that a family is homeless because it is not reasonable for the family to remain in their present accommodation indefinitely and to accommodate them there for as long is suitable as short term accommodation; but that it is not lawful for them automatically to leave such families where they are until a house becomes available under the council’s allocation scheme.
In the Moran case we would quash the finding that the appellant had become homeless form the refuge intentionally and substitute a finding that she had not.’
For the homeless at home this means that a duty can be accepted at an earlier date – that is, when it is not reasonable to occupy indefinitely and the authority can ‘hunt’ for long term suitable accommodation for them while finding that the accommodation they are living in is in the interim suitable accommodation.
Applying that test to a women’s refuge in the vast majority of cases would mean that it was never reasonable for a woman to occupy a refuge indefinitely – she would be homeless when she entered a refuge and stay homeless.
Although this might mean that a local authority could leave the homeless at home, a time would come when the occupant could not be expected to stay one more night. That would however be a question for the authority with which a court should be slow to intervene.
The authority would be under a duty to secure suitable accommodation and should remember that suitability operated on a sliding scale, so that it could also provide accommodation which might be better than the accommodation in which the occupant presently lived without it being suitable for the long term.
The result was that Mrs Moran was not intentionally homeless, but that as far as the Birmingham cases were concerned the homeless at home could be left in their own accommodation on the basis that it was suitable in the short term – but they had to be given the same priority for rehousing as homeless people in temporary accommodation.
The implications are that the new test sets the bar at which someone will be homeless at a lower level and there ought to be more people recognised as ‘homeless at home’. This should make it more difficult for local authorities to refuse applications or gatekeep.
Another impact of this test is that it renders very doubtful the decisions that had allowed local authorities to require tenants under notices from their landlords to stay until proceedings were brought as it cannot be said it is reasonable to occupy indefinitely.
The House of Lords accepted that there is still an immediate duty to secure that suitable accommodation is made available for occupation but this can be of your own home. The authority will be in effect making an ‘offer of accommodation’ of where you are living. This sits very uneasily with the wording of the statute.
What is the authority securing? The usual rule is that its duty ends if the applicant refuses an offer of suitable accommodation – but how can that be decided if the tenant simply stays at home? A formal rejection letter of the offer or a requirement to accept in writing where you are already living, even if you stay there?
Number of people classified ‘homeless at home’ in England at the end of the first quarter 2009
| ‘Homeless at home’ awaiting accommodation | Number of people in temporary accommodation | |
|---|---|---|
| North West | 630 | 1,360 |
| North East | 420 | 300 |
| Yorkshire and Humber | 1,230 | 1,430 |
| East Midlands | 300 | 930 |
| West Midlands | 860 | 1,160 |
| East of England | 210 | 3,470 |
| London | 1,570 | 47,780 |
| South East | 220 | 4,610 |
| South West | 130 | 2,980 |
| Total | 5,560 | 64,000 |
It will be difficult to challenge these decisions in court. How will advisers be able to show that it is no longer reasonable to stay one more night – that it is no longer reasonable to occupy at all rather than indefinitely? The House of Lords gives no guidance on this.
The only way out for the homeless at home unhappy with such an offer will be one many will be unwilling to take – namely, to move out and force the authority’s hand. If the accommodation that is secured to meet the duty is not reasonable to continue to occupy you cannot be intentionally homeless from it. Thus if the occupier decides, ‘I don’t care what the local authority thinks, I can’t stay here a moment longer’ and moves out, the authority will have a duty to secure that other suitable accommodation is made available.
This takes us back to the bad old days before 1986 when to be homeless you had to have no accommodation at all but to be intentionally homeless the authority had to show the accommodation you left was reasonable to continue to occupy. Now this difference in treatment of the homeless at home is to be found when deciding what accommodation is suitable for a homeless person rather than whether the applicant is homeless at all.
The House of Lords decision has created a lot of uncertainty in the duties owed to the homeless at home. It appears that the laudable determination of the Lords to reverse the decision in Moran has created a number of unintended consequences for the homeless at home.
James Stark is a barrister at Garden Court North Chambers.
