MccAmmon-Mckenzie, R (on the application of) v London Borough of Southwark [2004] EWHC 612 (Admin)

Case No CO/2481/2003[2004] EWHC 612 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 9th March 2004
Strand
London WC2
B E F O R E:
MR JUSTICE KEITH
Between
THE QUEEN ON THE APPLICATION OF MCCAMMON-MCKENZIEClaimant-v-
Between
LONDON BOROUGH OF SOUTHWARKDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS EMILY DAVIES (instructed by Hallmark Atkinson Wynter, London SW9 7DE) appeared for CLAIMANTMR DONALD BROATCH (instructed by Legal Services Department, London Borough of Southwark, London SE5 8PX) appeared for DEFENDANT
J U D G M E N T9th March 2004
[1]Mr Justice Keith: This is a claim for judicial review. Its focus has changed since it was issued. It is now concerned with the limited question of whether temporary accommodation which had been provided to the claimant by the time the proceedings were issued, and has been provided for her since the claim was issued, is suitable for her.[2]The claimant is 46 years old. She suffers from ME and depression. As a result she is registered as disabled and she cannot work. She has a son, Liam, who is now 16. He suffers from attention deficit hyperactivity disorder and has learning difficulties. He is underperforming in all aspects of his functioning and has low self-esteem. For reasons which it is unnecessary to dwell on, it is inappropriate for him to live in Southwark.[3]In November 2001 the claimant and Liam were living with the claimant's sister. They had to move out when the claimant's sister had a baby. The claimant applied to the defendant, the London Borough of Southwark ("Southwark"), for accommodation. In December 2001 Southwark found the claimant to be homeless but not intentionally so, eligible for assistance and in priority need, and to have a local connection with the borough. It therefore acknowledged that it had a duty under the Housing Act 1996 ("the 1996 Act") to provide her and Liam with accommodation.[4]The accommodation which Southwark offered the claimant was not acceptable to her for various reasons. The accommodation which had first been offered to her was held to have been unsuitable on a review of the decision to offer it to her. The accommodation which had then been offered to her was withdrawn once it was appreciated that Liam could not live within Southwark. Eventually, on 27th October 2003, Southwark requested the London Borough of Croydon ("Croydon") to assist it in the discharge of its duty to provide the claimant and Liam with accommodation. By section 213 of the 1996 Act Croydon was obliged to co-operate in that endeavour to such extent as was reasonable in the circumstances. It was primarily to get Southwark to seek Croydon's assistance that the claim for judicial review had been issued, and Southwark's decision to seek Croydon's assistance after the issue of the claim made that part of the claimant's claim academic. Since then, however, Croydon has said that it is unable to assist Southwark in the discharge of the duty on Southwark to provide the claimant and Liam with accommodation, and efforts to find suitable permanent accommodation for the claimant and Liam are continuing.[5]What is left in the case relates to the suitability of temporary accommodation which has been made available to the claimant pending the offer to her of suitable permanent accommodation. The temporary accommodation which has been provided to her by Southwark since 2001 has for the most part been bed and breakfast accommodation consisting of one room only. That proved unsuitable for Liam who needs his own bedroom, and since January 2002 he has been cared for by social services. He has stayed with his mother at weekends and sometimes during the week, but social services will not permit him to stay with her for any longer. He is keen to return to live with the claimant, and the care plan is for him to do so when she has been provided with accommodation which is suitable for them both.[6]This claim for judicial review was issued on 23rd May 2003. At that time the temporary accommodation provided by Southwark in which the claimant was then living was in the Whitehall Hotel in Thornton Heath. The claimant had been there since 17th February 2003. It was the fourth accommodation which she had been provided with temporarily, and like the previous ones it was bed and breakfast accommodation. Her case, which Southwark has not denied, is that it consisted of one room with two single beds and cooking facilities including a gas cooker and a refrigerator. It had, I assume, shared washing and toilet facilities. The claimant regarded it as unsuitable partly because it could not accommodate Liam. Accordingly, part of the relief which the claimant sought in her claim for judicial review was an order requiring Southwark to provide her and Liam with suitable temporary accommodation.[7]On 10th July 2003, i.e. about seven weeks after the issue of the claim for judicial review, Southwark provided the claimant with new temporary accommodation. That was in London Road, Croydon. It was not bed and breakfast accommodation; it was self-contained. Southwark described it as a flat; the claimant described it as a bedsit. But whatever label was applied to it, the accommodation consists of a kitchen, bedroom and living quarters, which are all contained within one room, though there is a separate bathroom and WC. It has two single beds. The claimant regards it as unsuitable as well. It is too small for her and Liam (even if it was appropriate for her to share a bedroom with Liam, which it is not). The accommodation is within Croydon's area, and although Croydon did not think that the accommodation was unfit for human habitation, Croydon regarded the accommodation as in a state of disrepair, and served a notice under section 190 of the Housing Act 1985 on the landlord.[8]Southwark does not admit that this accommodation is unsuitable, but it contends that the question whether it is suitable or not is irrelevant because on 18th November 2003 it offered the claimant other accommodation, which, though not ideal, it claims is suitable. This accommodation the claimant has refused to take. The accommodation is accommodation which Southwark has described as a "two bedroomed flat in Lewisham", though in fact it is two rooms in Nightingale House which is hostel accommodation with shared cooking, washing and toilet facilities. Both in terms of size and location Southwark say that it is suitable for Liam to live there as well.[9]The stumbling block originally was that the claimant was unwilling to sign the relevant papers which Southwark required her to sign before she had had an opportunity to view the accommodation. She had been provided too often in the past with accommodation which she regarded as unsuitable that this time she was not going to commit herself to taking the accommodation without viewing it beforehand. She had other reservations about the accommodation. The accommodation was said to be "very close" to Liam's school (I was told today that it is within 15 minutes walking distance of Liam's school) which relates to the reason why Liam cannot live in Southwark, and she would have preferred the temporary accommodation to have been in Croydon. But her position, then at any rate, was not that she was refusing the accommodation which was being offered to her; she was simply refusing to accept it without viewing it. For its part, Southwark's practice is to require persons whom it has a duty to house to sign for the accommodation without giving them an opportunity of viewing it, and to entertain representations about the suitability of the accommodation later. That impasse has resulted in(a) the claimant continuing to live in the accommodation in London Road, Croydon, which is not large enough to accommodate Liam, and(b) Southwark contending that it has discharged its duty to provide suitable temporary accommodation to the claimant.[10]To bring matters up to date, the claimant was re-offered this accommodation yesterday, and she was told that she could view it before accepting the offer of it if she wanted to. Her position now is that Southwark can no longer discharge its duty to accommodate her and Liam, whether temporarily or permanently, by the provision of hostel accommodation. The time has now arrived when she really should be provided with a self-contained flat with a second bedroom for Liam.[11]The governing statutory provision is section 193 of the 1996 Act which is headed "Duty to persons with priority need who are not homeless intentionally". It provides in subsections (1) and (2) as follows:
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
Since the claimant was regarded by Southwark in December 2001 as satisfying the conditions in section 193(1), Southwark's duty under section 193(2) has been to "secure that accommodation is available for occupation by" the claimant and Liam. However, that accommodation has to be suitable. That is the effect of section 206(1) of the 1996 Act which provides:
"A local housing authority may discharge their housing functions under this Part only in the following ways -- (a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
In determining whether accommodation is suitable, Southwark has to have regard to Parts IX, X, and XI of the Housing Act 1985, which dealt with slum clearance, overcrowding and houses in multiple accommodation respectively: see section 210(1). Southwark also has to have regard to such guidelines given from time to time by the Secretary of State: see section 182(1).[12]The claimant's case can be put shortly. The accommodation in which she was living when the claim for judicial review was issued was not suitable even as temporary accommodation because it was too small to accommodate Liam. The accommodation in which she is living now suffers from the same vice. And the accommodation which she was offered in Lewisham and which has now been re-offered to her, though large enough to accommodate Liam because it consists of two separate rooms, is completely unsuitable for a homeless person who lived in temporary bed and breakfast accommodation from December 2001 until July 2003. Other points are taken on the claimant's behalf by Miss Emily Davies, but that is the core of it.[13]Southwark's case is that its attempts to accommodate the claimant and Liam have to be seen in the context of the particular difficulties which their case has presented. For some time the focus was on the provision of permanent accommodation. It took a long time before it was apparent to Southwark that the two sets of permanent accommodation offered to the claimant were unsuitable, and then it was anticipated that Croydon would be able to help, only for that hope to prove unfounded. Moreover, the particular requirements of the claimant and Liam -- in view of the state of their mental health, the need for Liam to have a bedroom of his own and the need for Liam to live out of Southwark -- made them an unusually difficult family to house. Although it was regrettable that they were still in temporary accommodation, and that the temporary accommodation which they had had or been offered was either in hostel accommodation or had only one bedroom, or both, that was not for Southwark's want of trying.[14]I do not wish to be seen to be minimising Southwark's difficulties, but they should not be exaggerated either. Two things in this case are plain. First, the accommodation to be provided to the claimant has to have two bedrooms. The reason why Liam is in care is because he and his mother were living in one bedroom at the time. Accommodation, whether temporary or permanent, will not be suitable for Liam for as long as he has to share a bedroom with the claimant. For that reason, the accommodation which the claimant was living in when the claim for judicial review was issued, and the accommodation which she is living in now, is unsuitable.[15]Secondly, the time has now come when the claimant cannot expect to return to hostel accommodation. It is, of course, for a local housing authority to decide whether the temporary accommodation which it offers is suitable, and it is legitimate for a local housing authority to offer temporary accommodation of a lower standard than what would have been suitable for permanent accommodation. But the particular guidance to which Southwark was obliged to have regard was that set out in the guidance issued by the Secretary of State in July 2002 entitled "Homelessness Code of Guidance for Local Authorities". Paragraphs 11.8 to 11.11 address the issue of bed and breakfast accommodation. Paragraphs 11.8 to 11.10 provide, so far as is material, as follows:
"11.8. Bed and breakfast accommodation caters for very short-term stays only and generally will afford residents only limited privacy and may lack certain important amenities such as cooking and laundry facilities. Consequently, wherever possible, housing authorities should avoid using bed and breakfast hotels to discharge a duty to secure accommodation for all homeless applicants, unless -- in the very limited circumstances where it is likely to be the case -- it is the more appropriate option for the applicant. 11.9. Living in bed and breakfast accommodation can be particularly detrimental to the health and development of children. Housing authorities should, therefore, use bed and breakfast hotels to discharge a duty to secure accommodation for families with children only as a last resort. Where no suitable alternative accommodation is available, placement in bed and breakfast accommodation for this client group should be kept to the minimum period possible and housing authorities should ensure that homeless applicants are allowed to use their rooms during the day and have adequate access to cooking facilities. ... 11.10. Bed and breakfast hotels can have a role to play in ensuring some homeless client groups have somewhere to stay, and may provide suitable accommodation in certain limited circumstances. These circumstances may include those where: ... c) there is simply no better alternative accommodation available and the use of bed and breakfast accommodation is necessary as a last resort. In respect of c), bed and breakfast accommodation should be used for the shortest period possible, particularly in the case of families with children."
[16]This guidance has now been given statutory effect by the Homelessness (Suitability of Accommodation) (England) Order 2003 which comes into force on 1st April 2004. By paragraph 3 of the Order, bed and breakfast accommodation is not to be regarded as suitable for an applicant with family commitments for the purposes_ of section 193(2), unless (and this is paragraph 4(1)(b)) "the applicant occupies bed and breakfast accommodation for a period which does not exceed six weeks".[17]It may be that bed and breakfast accommodation in a hostel would have been appropriate as a temporary measure in December 2001 when Southwark first accepted that it had a duty to provide the claimant and Liam with accommodation. Temporary accommodation in bed and breakfast accommodation in a hostel may therefore have been appropriate initially, and even for some time as a last resort, if no better accommodation was available. But however difficult it may have been to find suitable temporary accommodation for the claimant and Liam, the time had arrived by when this claim for judicial review was issued when it could no longer be said that bed and breakfast accommodation in a hostel was suitable temporary accommodation for them. For that reason, the accommodation which the claimant was living in when the claim for judicial review was issued, and the accommodation in Lewisham offered to the claimant in November 2003 and re-offered to her yesterday, is unsuitable. It follows that Southwark has failed in its duty under section 193(2) of the 1996 Act to secure that suitable accommodation is available to the claimant.[18]Before I turn to the remedy for that breach of duty, I should deal with a procedural point taken by Mr Donald Broatch for Southwark. The issue about temporary accommodation raised in the judicial review claim form was that the accommodation which the claimant was then living in was unsuitable. Since that has been overtaken by events, namely, the offer of new temporary accommodation in July 2003 which the claimant accepted, and the offer of yet further temporary accommodation in Lewisham which the claimant has refused, the focus of the case has been on the suitability of the accommodation offered to her since the claim was issued. It is said that at the very least the claim form should be amended.[19]I do not agree. The issue is still whether the accommodation in which the claimant was living when the claim for judicial review was issued was suitable. The suitability of accommodation which has subsequently been offered to her is relevant to whether the court should grant her any relief if the accommodation in which she was living when the claim for judicial review was made was found to be unsuitable. If she has since been offered suitable accommodation, that would have affected the nature of any relief to which she was entitled. As a matter of form, she is still only challenging the suitability of the accommodation in which she was then living. The unsuitability of the accommodation which has been offered to her subsequently means that she ought not to be deprived of the relief to which she would otherwise have been entitled.[20]It is, therefore, to that relief which I now turn. In my opinion, this is a case in which a mandatory order should be made requiring Southwark to comply with its duty to provide temporary accommodation for the claimant which is suitable for her and Liam. In reaching that conclusion, I have taken into account in particular three things: first, the length of time during which the claimant has been living in unsuitable accommodation; secondly, the lack of any evidence of what Southwark has done to find temporary accommodation which is not bed and breakfast accommodation and which has a second bedroom; and thirdly, the fact that there is no end in sight for the claimant. To echo the words of Scott Baker J (as he then was) in R (Khan) v London Borough of Newham [2001] EWCA Admin 589, far too long has now passed without the claimant and Liam having been properly accommodated. I shall hear from counsel on the time which I should give Southwark to comply with its duty to provide to the claimant temporary accommodation consisting of a self-contained flat with two bedrooms.

MR JUSTICE KEITH: Yes.

[22]MISS DAVIES: My Lord, our application would be for it to be as soon as possible, obviously recognising that there also needs to be some time given that the property in Lewisham is not going to be suitable, but we would certainly say 21 days, the mandatory order to be complied with within 21 days which we would say is reasonable in these circumstances.[23]MR BROATCH: My Lord, I have taken the liberty of preparing a draft order which I hope your Lordship will find helpful. (Handed). My Lord, having read through the two cases upon which my friend relies, it is a submission on behalf of the authority that two months is an appropriate period.[24]MR JUSTICE KEITH: I have to say that that was the provisional view that I had reached. I know it was two months in -- that Scott Baker J said and I am afraid I did not read the exchange between counsel and Collins J at the end of his case. What was the length in that case?[25]MISS DAVIES: I believe it was 21 days.[26]MR JUSTICE KEITH: 21 days. Yes.[27]MR BROATCH: I am contending for two months and your Lordship appreciates that it is an unusual case. Whilst I am on my feet should I go through the rest of the order?[28]MR JUSTICE KEITH: Yes, please. I think two months is the right time. I appreciate that there will be a period between now and then when your client will continue to live in unsuitable accommodation, but I do not think that it would be right for me to require the Council to comply with its duty in a lesser time than that.[29]MR BROATCH: Going on to paragraph 2, "defence obligation as above shall be discharged and cease upon making to the claimant an offer of permanent accommodation".

MR JUSTICE KEITH: Would you mind if I read this to myself?

[31]MR BROATCH: Yes, certainly. I am sorry, I had have to put some manuscript alterations in. (Pause)

MR JUSTICE KEITH: Shall we have "upon reading the documents on the court file".

[33]MR BROATCH: We can't recite affidavits in the old way.[34]MR JUSTICE KEITH: Let's not bother about that. I think "the documents on the court file" is sufficient for our purposes. (Pause). What's Liam's full name?[35]MISS DAVIES: Liam Anton McCammon-McKenzie. (Pause)[36]MR BROATCH: In the light of your Lordship's conclusion on the pleading point, if can I call it that, perhaps 3 and 4 will have to be argued. (Pause)

MR JUSTICE KEITH: Your client is publicly funded I assume?

[38]MISS DAVIES: Yes. (Pause)[39]MR JUSTICE KEITH: Yes. Can we leave the question of costs out of it for the moment? We will come to that in a moment, paragraphs 3 and 4. Do you have paragraph 6 there?[40]MISS DAVIES: I do.

MR JUSTICE KEITH: Yes.

[42]MISS DAVIES: I do have paragraph 6. In relation to paragraph 2 my only concern there is that once the discharge decision is made there is a right to review that and that is what has happened in this case. It was as a result of the review of that that in fact they withdrew the decision. That is paragraph 2. My only concern, it is up to the discretion of the local authority whether they continue to house during that period, but I am reluctant if there is a challenge of the discharge decision to allow the local authority not to have to comply with providing suitable temporary accommodation.[43]MR JUSTICE KEITH: So you would want something added to "subject to the claimant's right of review". Are you content with that?[44]MR BROATCH: My Lord, the claimant has her right of review in any event. This doesn't take that away. Between offer, discharge letter and review it is within the discretion of the authority whether to maintain that temporary accommodation between -- and that's supposing there's an unsuccessful review and an appeal, your Lordship will know that between an appeal -- review decision and appeal it is up to the County Court under section 204A to decide whether -- if the authority decides not to house pending the full appeal, there is right to go to the County Court for an order that the applicant be housed pending the determination of the appeal. That is 204A.

MR JUSTICE KEITH: What do you say to that?

[46]MISS DAVIES: I hear what is said about the County Court. Our position in relation to review, yes, it is the discretion of the local authority, but simply in the history -- because of the history of this matter what I am reluctant to advocate is what happened in the last instance, that there be six months between the date when the review was asked and she then for another six months not be provided with suitable temporary accommodation. I simply ask whether in this case it could be on the basis of once the local authority has considered the review. It is highly unlikely in this case that the local authority is going to refuse to accommodate the applicant whilst they carry out the review -- the discharge decision.[47]MR JUSTICE KEITH: What I am being asked to do is to decide what actually should happen once there is the discharge and pending a review of the decision to discharge. It seems that I should not be doing that now.[48]MISS DAVIES: I can see that, my Lord.[49]MR JUSTICE KEITH: I don't think there is any objection actually to paragraph 2. I think it should stand as it is. What about paragraph 6?[50]MISS DAVIES: I have no objection to that, my Lord. No.[51]MR JUSTICE KEITH: Very well. I mean, plainly the liberty to apply -- an application pursuant to the liberty to apply would have to be considered very carefully by the court and it is very unlikely that the court would grant an extension, save on powerful and compelling grounds. Yes, very well. I am content with making an order in the terms of the draft, leaving aside paragraphs 3 and 4. What do you say about the costs then of the proceedings, Miss Davies?[52]MISS DAVIES: My Lord, we apply for the costs of the entire proceedings up until today. We have been successful on our application and we should have those costs.[53]MR BROATCH: Well, my Lord, the applicant has been successful. My pleading point failed, or the amended point failed. It was clear that there were one or two documents which my friend had in her bundle which had not been served, but that did not cause any difficulty. They have not been shown to be of great materiality. I have nothing to say.[54]MR JUSTICE KEITH: Very well. I don't think there are in this case any reasons why the usual costs order about costs following the event should not follow. So the order that I make --[55]MR BROATCH: We crossed out the word "incurred up" to and --[56]MR JUSTICE KEITH: Hold on. "The defendant to pay to the claimant her costs of these proceedings. Such costs to be the subject of a detailed assessment on the standard basis in default of agreement". Paragraph 4 comes out. What was 5 becomes 4 and what was 6 becomes 5. Very well, I will sign that. Today's date.[57]MR BROATCH: Does my Lord require a perfected copy to be sent over?[58]MR JUSTICE KEITH: No, this will be sufficient for our purposes, thank you. Thank you for the succinctness of your submissions.