Section: Homelessness & Asylum Seekers

Shelter Raised Complaint with Ombudsman

Nottingham City Council failed to deal properly with the rehousing of a woman with three small children, who fled her home because of harassment, reported Local Government Ombudsman Anne Seex. The woman's complaint to the Ombudsman was brought by Shelter Nottingham.

"Without the co-operation between Shelter and the Local Government Ombudsman, the difficulties this family experienced may never have been resolved" said Anne Bethell, General Manager of Shelter Nottinghamshire. She added, "The solution to situations like these is to improve communication between the statutory and voluntary sectors."

Ms P and her three small children left their council home after experiencing harassment and actual physical assault from her sister and associates who lived nearby. The charity, Shelter, complained on Ms P's behalf about the way the Council handled her rehousing, as she could be considered statutorily homeless.

The Council tried using alternatives to homelessness legislation to deal with the situation. In her report, the Ombudsman does not criticise this approach in principle, but says, "It should not be used to set aside the rights and duties conferred by the law."

After the Council had given the family a temporary tenancy, it took over two years to rehouse them permanently.

The Ombudsman found compound failures by the Council. She concluded that it was legitimate for the Council to try to find an alternative to dealing with Ms P under the homelessness legislation, but, having given her a temporary tenancy whilst maintaining her original tenancy, it then:

failed to take any action to resolve the situation for eight months;
made mistakes about Housing Benefit, which caused the rent account of her original property to fall into greater arrears; and
allowed the rent arrears to become an obstacle to offering her a permanent tenancy.

As a result, Ms P was not rehoused to a permanent tenancy until almost two years after she had fled from her original home. Ms P and her children suffered the injustice of having to live in temporary accommodation for longer than necessary. The Council's failings also meant that a property was standing empty for almost two years.

The Council has accepted fault and agreed to review its procedures, so as to avoid the problems noted above. It has also agreed to pay compensation of £2,000 to Ms P.

The Ombudsman asks the Council to complete its review within three months of the publication of the report and to tell her of the results.

Local Government Ombudsman Report No. 04/C/18012

Homelessness Code of Guidance Criticised

On 24 July 2006, the Department for Communities and Local Government (DCLG) issued a new Homelessness Code of Guidance for local housing authorities in England. It took effect on 4 September 2006.

A press release was issued by Garden Court Chambers on 25 September 06. Whilst post the reporting period of this edition of Legal Update, the press release provides relevant comment and it is therefore reproduced below.

Two leading housing law specialists have described the Government's handling of homelessness policy as a "shambles."

Jan Luba QC said:

"After years of delay, the Government has recently published a new Code of Guidance for housing authorities in England explaining how they should implement homelessness legislation.

Within 10 days of it coming into force, regulations have been made by Ministers which will make parts of the Code redundant and which belatedly seek to put right a significant error in the legislation on which the Code is based.

I alerted practitioners to the error before the Code was published but it has taken over four months to correct it."

Liz Davies, another housing barrister, said:

"This is a complete shambles. Housing authorities have been waiting years for this Code. It has been launched over the summer without Parliamentary scrutiny and the fact that it now is full of holes is the perfect illustration of a failure in joined-up government.

The changes made by the latest regulations are to the already labyrinthine rules on eligibility for homelessness assistance. Without an up-to-date Code, housing officials will have real difficulty coping. The Government has not even addressed the fact that part of the rules were declared unlawful by the Court of Appeal as long ago as October 2005. "

Information Notes

The Code of Guidance was issued on 24 July 2006 and came into force on 4 September 2006.
The error in the legislation relates to what happens when an authority places its homeless families in another authority's area. The law was that such families remained the responsibility of the placing council for up to 5 years. By mistake, the "5 year period" was repealed by regulations made in May 2006, so that this anti-dumping provision was effectively revoked. The new Code was written on the basis that the mistake was, in fact, deliberate government policy (the references to it made in the 2002 Code - at para 15.5 - were not reproduced) and the new Code explains that the rules now only apply in Wales (see Annex 18 para 3.2(d) of the new Code).
Jan Luba QC pointed out the error in the column Recent Developments in Housing Law published in the early July 2006 issue of Legal Action magazine.
The mistake is corrected by regulations made on 14 September 2006, which will come into effect on 9 October 2006 and which will restore the anti-dumping provision in England. The fact that it was an "error" and not deliberate policy is confirmed in the accompanying explanatory memorandum. Nothing has been issued to local housing authorities about this.
The separate issue of "eligibility" relates to the policy intention that people coming from abroad should not get help if homeless. Housing officers, therefore, need to check the immigration status of applicants. The tortuous law on the subject had already been re-amended by three sets of regulations this year before the Code took effect. Now, new terminology is introduced by the regulations made on 14 September 2006 and the categories have been changed again. All the relevant parts of the Code have immediately been rendered out of date. The changes are set out in the explanatory memorandum published with the regulations.
On 14 October 2005 the Court of Appeal declared part of the rules on eligibility to be incompatible with the Human Rights Act 1998 (see the judgement in the Morris case). No remedial legislation has been introduced.
Jan Luba and Liz Davies are the joint authors of Housing Allocation and Homelessness (Published by Jordans, 2006).

Case Law Update

The claimants were the sons and daughters of displaced occupiers of the Chagos Islands. They had the right of abode in the UK and came here from Mauritius to find work and housing.

Their homelessness applications led to decisions that they were not eligible, on the ground that they were not 'habitually resident'. Jobseekers allowance was refused for the same reason.

The High Court dismissed claims for Judicial Review of those decisions. It ruled that there had not been discrimination contrary to the Race Relations Act 1976, the EU Race Directive, or the ECHR art 8 or 14. Further, the Government was not under a positive duty to provide a special exception from the habitual residence test for displaced islanders or their descendants.

R (Bontemps and Couronne) v Crawley BC [2006] EWHC (Admin) 1514 [2006] All ER (D) 369 (Jun), Admin Court
Having been asked to leave the parental home by her mother, Ms M applied to the Hammersmith & Fulham Council as homeless when she was aged 17.

The Council accepted the application and also that Ms M may be both homeless and have a priority need. It provided accommodation under Housing Act 1996 s188 pending further enquiries.

Ms M sought Judicial Review of the Council for failing to recognise her as a "child in need" and not to provide her with accommodation under Children Act 1989 Part III.

The Court of Appeal dismissed an appeal against refusal of permission to apply for Judicial Review, ruling that the Council had correctly accepted a duty under housing legislation and performed it.

R(M) v Hammersmith & Fulham LBC [2006] EWCA Civ 917, 5 July, CA
Mr and Mrs Fletcher had been joint tenants of the Council. Mrs Fletcher obtained a Court Order ousting her husband. Later, she gave Notice to Quit, so as to end the tenancy and was re-housed.

Her Notice to Quit was expressed to expire on the same day it was given or "on the first Monday after that date, being at least 4 clear weeks after service."

On his homelessness application, Brent decided that the Notice was ineffective and Mr Fletcher was not homeless because he was still a tenant.

The Court of Appeal allowed Mr Fletcher's appeal. It ruled that the Notice to Quit had been valid and had ended the tenancy. The question of whether Mr Fletcher had any other right to occupy the property, e.g., under a subsequent express or implied licence from Brent Council, was remitted to the Council's reviewing officer.

Fletcher v Brent LBC [2006] EWCA Civ 960, 7 July, CA
The appellant was excluded from her parental home when aged 17.

On 17 February 2005 she applied to the Council as homeless. She was due to turn 18 on 11 March 2005. On 10 March 2005, the Council told her by telephone that she did not have a priority need. That was confirmed in a written notice with reasons given on 11 March 2005.

On 10 May 2005, the Council confirmed its decision on review.

The Court of Appeal held that:
- The Council's decision had been made on 10 March 2005.
- That decision was unlawful because on that date the applicant was still aged 17.
- The review decision was wrong in law because even though it took place when the applicant was aged 18, she should have had the benefit of what would have been a lawful decision on 10 March.
The Judgement illustrates how 'family mediation' cannot be used to justify a delay in enquiries.

Robinson v Hammersmith & Fulham LBC [2006] EWCA Civ 1122, 28 July, CA

Section: Homelessness & Asylum Seekers

Shelter Raised Complaint with Ombudsman

Homelessness Code of Guidance Criticised

Information Notes

Case Law Update

Housing Monthly Diary

Issue: September 2006 Reporting on July-August 2006

Quick Links

Welcome to the Legal Update

Archive Issues Reporting Periods