This item is Part 3 of our free training material for homelessness officers.
In this free series of useful cases on homelessness prevention we invite you to look afresh at the possibilities for prevention outside of the normal tick-box of finding an applicant somewhere else to live or topping up their rent shortfall with DHP.
These are some of the legal routes available to you if you can ask the right questions.
S 175 (3)Housing Act 1996:
“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”
This so often relates to violence or threats of violence but in this section we are going to examine some other less common reasons for this particular cause of homelessness.
Bear in mind that this test also occurs in intentional homelessness so much case law on reasonableness is to be found in IH cases.
Regina v Brent LBC ex p Bariise (1999) CA – stealing food in a shared house a common hazard
I confess I can never read this one without a smile. As you know accommodation can be deemed reasonable to remain in as long as the council has had regard to general conditions in its area.
Baruuse gave up a room in an HMO which she occupied with her kids, citing dirty house mates and theft of food from her cupboards. She couldn’t return so was homeless but the decision came back and bit her on the bum at the IH test.
The council said that her situation was not unusual in shared houses.
The initial judge quashed the council’s decision saying they had not considered her specific circumstances before looking at the situation more widely.
The Court of Appeal went with the council, saying that the council are in the best position to tell what circumstances are like in their district.
The CA said, in one of those statements that you aren’t sure are entirely serious:
“The fact that when told of the extent of the alleged thefts the council did not react with astonishment suggests to me that this may indeed be a not uncommon situation in Brent”.
A strange comment for no other reason than anyone who has worked in frontline homelessness for a little time will find it difficult to be astonished at many things.
The original judge didn’t think the council had looked at how bad the situation was for the applicant before considering how widespread a problem it was. For what its worth I think the initial judge may have been right.
Moral of the tale: This keeps coming up again and again in homelessness decisions, taking into account relevant facts and showing how you reached a decision. If the thefts of food had been so bad that the applicant couldn’t afford to replace and was therefore starving it may well have been more serious but in homelessness prevention terms would the council providing a lock on a food cupboard have sufficed? Or even provision of her own fridge in the room?
Regina v Kensington & Chelsea RLBC ex p Ben-El-Mabrouk (1995) CA – Could be reasonable to remain even where inadequate fire precautions.
The tenant of a room at the top of a house called in environmental health who deemed it unfit for human habitation because of inadequate fire precautions (this was 1995, you could do that then).
They served works notices on the landlord and the tenant made a homeless application which the council rejected on the basis that there were many similar properties with this problem in the district and the fact that it was already dealing with the problem through the works notices.
At judicial review the judge went so far as to accuse K&C of being “Wednesbury unreasonable” – a very serious type of unreasonableness but the court of appeal disagreed and found for the council.
The council had taken into account all relevant matters and investigated them properly. They were right in deeming that they were pursuing action to fix the fire precautions through works notices and this was sufficient.
Judge Bingham did specifically emphasise however that it would not have been reasonable if the council merely served the works notices and left it at that, so there must be live action going on in relation to the complaint.
Moral of the tale: Sometimes homelessness prevention can be best achieved through practical means rather than strictly legally based ones. Fixing the problem is, I would have thought, cheaper than rehousing someone. If safety is the sole issue, what can you or your organisation do to make it safe? Who else can help?
Waltham Forest LBC v. Maloba (2007) – property abroad not reasonable to expect to occupy.
A fascinating one this with some very instructive points that need to be considered.
Mr Maloba came to UK from Uganda in 1989, became a naturalised citizen in 1997 and got married in Uganda in 2002 having a daughter with his wife who were living in an annexe to the family home in Kampala. They joined him in the UK in 2004.
Waltham Forest said he was not homeless as he had accommodation for his entire family in Uganda but he countered with the argument that he was settled in UK and wanted to remain here.
On appeal under s204 to the county court the council’s decision was quashed as ‘Wednesbury unreasonable’. The council lost and appealed to the court of appeal and lost again.
The council’s argument that the wording ‘“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.” meant that the applicant was already living there, if they were indeed to ‘continue to occupy’.
They went on to argue that they did not have to consider the location of the accommodation only the size and facilities.
On the first point the CA deemed that “Reasonable to continue to occupy” should be construed as synonymous with occupying for a ‘Continual period’.
On the second point the CA said the applicant’s personal circumstances also need to be considered in determining reasonableness adding that the council had applied too rigid a test.
Moral of the tale: In deciding whether or not a property is reasonable to occupy it is important to look at all of the applicant’s circumstances, not just the usual tests of violence, affordability, overcrowding etc. Remember, as is the case with so many of these points we are covering it is for the council to decide but make sure you are taking into account all the relevant information and show in your s184 letter how you reached your decision.
In part 4 we will look at other ways that homelessness can be prevented where possession proceedings have begun where the security of tenure has not been correctly identified and the proceedings are therefore invalid.
If you want practical, hands-on training on matters relating to this approach to homelessness prevention then look at our courses on: