Homelessness: Reasonable to remain

In R (Safi) v The Borough Council of Sandwell [2018] EWCA 2876 the Court of Appeal for England and Wales clarified the factors which are relevant in determining whether a household is homeless for the purposes of section 175(3) of the Housing Act 1996. In particular, the Court emphasised the need to consider the “foreseeable future” as well as the circumstances at the date of the decision or review in making such decisions. As the provisions of section 175(3) of the Housing Act are identical to those of Article 3 (3) of the Housing (Northern Ireland) Order 1988, this case will be relevant to decision makers in Northern Ireland. 

Megan Millar, a recent LLM University of Melbourne Graduate who is currently volunteering with Housing Rights, discusses the case and its relevance to Northern Ireland. 

Background to the case

The applicant (Ms Safi) was allocated a one-bedroom flat by the respondent council (BC Sandwell) in 2012. Ms Safi was originally the sole occupant of the property, but married in 2013 whereupon her husband moved into the flat with her. In July 2015, their first child was born. In November 2015, the applicant applied for new accommodation on the grounds that it was no longer reasonable for her to occupy the flat. She alleged it was overcrowded, damp and in disrepair, and difficult to access with a pram and baby.

The respondent refused to make any enquiries on the basis that the applicant could not be homeless, within the meaning of the Housing Act 1996, as she currently had somewhere to live and the alleged disrepair had been resolved.

After a homelessness application form was submitted by the applicant, the respondent informed the applicant in December 2015 that she was not found to be homeless or threatened with homelessness within 28 days and therefore her application had been rejected. The letter of review stated that the applicant and her family would be registered on a waiting list for larger accommodation.

In January 2016, the Community Law Partnership, acting for the applicant, requested a review of the decision. The Homeless Review Panel upheld the respondent’s rejection of the application in February 2016. It noted that Ms Safi was not homeless or threatened with homelessness, that she currently had a secure tenancy with the respondent in a property suitable for the household and that she had been given a band 3 rating on the waiting list allowing her to seek alternative accommodation through the respondent’s allocation process.

After the Review Panel’s initial decision, the applicant discovered she was pregnant with a second child. Additional representation was made on her behalf that it was  unreasonable for 2 adults, a young child and a new-born baby to reside in the flat. However, the original rejection was reinforced by the Homeless Review Panel in June 2016.

Determining whether it is reasonable to remain requires consideration of any changes in the forseeable future

The Court of Appeal (Civil Division) allowed the appeal and the decision was quashed.

The point of significance was whether, in looking to the future, the council had to take account of the birth of the second child or whether, as the respondent argued, their decision could be made on the basis of the family as then constituted. 

The court found that, although the decision letter referred to Ms Safi's pregnancy, and the council believed that it had sufficiently applied the test required by Ali v Birmingham City Council [2009], (case report by NearlyLegal) "...the question whether the impending birth made it unreasonable for the appellant to continue to occupy the flat was not addressed, even if it was reasonable to expect the appellant and her family to continue living htere in the short term", further pointing out that the approach taken by the respondent in the decisions made in December 2015 was essentially the same as the approach taken in June 2016, in spite of the "significant change" that would occur when Ms Safi's second child was born in October 2016.

David Richards LJ held that the council had to take account of the birth of the second child and that the respondent had failed to direct itself in accordance with Ali, which obliged the respondent to ask itself two questions:

1. Whether it was reasonable, taking into account the foreseeable future as well as the present, for the family to continue to occupy the flat?
2. If not, how long in the short term would it be reasonable for them to occupy the flat and would they be likely to obtain suitable accommodation via the housing register within that period?

The Court of Appeal also found that there had been procedural failure because the respondent did not provide the appellant with an opportunity to respond to the new and more detailed matters on which the respondent relied upon for its final decision in June 2016.

Relevance to Northern Ireland

Although a decision in the Court of Appeal for England and Wales is not binding on courts in Northern Ireland, this judgment is persuasive and should be cited in relevant homelessness reviews. Decision makers and advisers should consider any relevant and likely changes of circumstances in the “foreseeable future” of clients with regard to their housing needs as well as the circumstances at the date of the decision or review.