Araya, R (on the application of) v Leeds City Council

The claimant Marta Araya is a refugee from Eritrea with 2 children aged 3 and 1 who has indefinite leave to remain in the United Kingdom. She seeks permission to challenge the decision of Leeds City Council of the 12th March 2009 requiring her to vacate their temporary emergency accommodation at 56 Sandhurst Avenue, Leeds and to move at short notice to a 1 bedroom flat at Mount Cross Hostel Leeds, which it had determined was suitable accommodation under Section 188 Housing Act 1996.

The Council’s duty to house is set out in that section:

188.

Interim duty to accommodate in case of apparent priority need

1)

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

2)

The duty under this section arises irrespective of any possibility of the referral of the applicant's case to another local housing authority (see sections 198 to 200).

3)

The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).

The claimant seeks judicial review of the Council’s decision

On the 17th March I granted an injunction to prevent the Council interfering with the claimant’s occupation of 56 Sandhurst Avenue pending the outcome of her application and on the 29th April ordered a rolled up hearing for permission and if appropriate the substantive application. Having read and heard the arguments of counsel, it is appropriate to grant permission and to consider the substantive application.

Mr Dodd has limited his challenge to two main points: first that the decision did not properly take account of location; second, that in all the circumstances there was insufficient notice given to the claimant to move.

He accepted that it was not ‘Wednesbury’ unreasonable to decide that Mount Cross Hostel was a suitable property in itself, whilst not conceding his client’s view that it was nevertheless not suitable for her needs. The thrust of his argument is that the claimant during her 8 months in the Harehills area of Leeds had become part of the local Eritrean community, in particular, the church where she and her family spent most of each Saturday and Sunday; that a decision to expect her to move at short notice after that length of time was unreasonable and in breach of her Article 8 rights.

Mr Dodd summarises his argument in this way: even if Mount Cross Hostel was not unsuitable, the decision nevertheless has to be taken properly and in accordance with the Act; if flawed, the decision does not do what the Act requires; it is no answer that the end result is the same –‘you have accommodation that is suitable’. This is because, he submits, those who apply are entitled to the possibility that there might be property that was even more suitable if the process were carried out correctly.

He relies on the decision of Collins J in R v Newham London Borough Council ex parte Ojuri (1999) 31 H.L.R. 452. The housing authority under their duty to provide suitable accommodation to a homeless father of 3 children decided that temporary bed and breakfast accommodation would be provided some considerable distance from their previous temporary accommodation, in particular, it would take the children at least 1½ hours to go to the school they attended. Collins J held that it was ‘just conceivable’ that the housing authority could reasonably regard the accommodation as suitable in the circumstances of that case, but that the way in which the decision was made was flawed in that it did not follow the correct path; that it did not consider the needs of this particular family and marry those needs to whatever might have been available; that, therefore, it did not make sufficient efforts to look at other possibilities, including the temporary accommodation from which they had just been evicted; that, as a result, the family lost the chance of obtaining accommodation which might have been much more suitable. So he held that the applicant was entitled to have his case considered in the proper way to determine whether by chance there was something better available.

It seems to me that I should exercise a degree of caution in applying the facts of that case to the present case, because the decision was plainly fact sensitive and I have to be mindful that I should not scrutinise the decision of a housing officer to the same degree as I should interpret a statutory provision or the decision of a lower court. Nevertheless, the case clearly illustrates the correct approach to determining the issue in the present case, that is whether the decision process was flawed or not.

Mr Dodd submits that Ms Binns did not give sufficient consideration to the location of Mount Cross Hostel as compared to the Harehills area of Leeds where the claimant and her family were settled into the community; that such consideration cannot be read into her stated reasoning by implication.

Mr Dodd’s second point is that as Ms Binns’ evidence closes the argument on the suitability of the accommodation itself, so it opens the further argument in relation to the timetabling part of the decision, which, he submits, was inhumane and wrong, that is the short notice to move.

Although the agreement under which the claimant occupies her present accommodation makes it clear that this is accommodation from which she can be moved at short notice, the question whether she should move, nevertheless, is entirely fact sensitive. The agreement itself provides that the council will give occupants as much notice as possible that they require them to make a move. For some people that possibility may not be a particularly important consideration, whereas at the other end of the spectrum, the provision for as much notice as possible is of enormous importance. The obligation is to treat everyone with a fair minimum of humanity. He points out that Ms Binns in her second statement indicates that as from January this year a move was planned; that in the event all the claimant required was 7 days notice.

Mr Dodd submits that, if the Council had considered the claimant’s Article 8 rights, it could and should have told her about the planned move in advance rather than tell her to come to an interview and drop the ‘bombshell’; that there was no pressing need to move her out established; that in doing so it treated her in a less than humane way. For that reason, he submits, the decision to move her was unlawful.

Mr Crossley submits that the situation in Ojuri was entirely different; that in the present case, Ms Binns gave careful consideration to all the needs of this family against the background of the most pressing need which was to support her in her bid for permanent accommodation as soon as possible. Her reasoning is contained within her two statements. Mr Crossley submits that Ms Binns did have regard to the following needs and requirements of the claimant and her children: the nature of accommodation; the support that could be offered; there were 2 Eritrean families in Mount Cross Hostel; the claimant’s ties with the Eritrean community in Harehills could still be met at this accommodation; her regular attendance at local church (Saturdays and Sundays); any obstacles to attending church were similar to question of living away from Harehills; Harehills was accessible by 2 buses from Mount Cross Hostel within a reasonable time.

The point that the claimant is settled in the Harehills area, Mr Crossley submits, is wrong. The aim was for 56 Sandhurst Avenue to be temporary accommodation enabling the claimant to bid in the Harehills and other areas nearby where she has in fact been bidding.

He submits that there was no failure to have regard to the suitability of the locality of Mount Cross Hostel, because it was considered by Ms Binns following the claimant’s objection. She considered the matter at two stages: her information enabled her to remain of the view that Mount Cross Hostel was a suitable property, which, he submits, is an answer to Mr Dodd’s first submission; the fact that the word ‘location’ does not appear in her statement matters not, because it is implicit that she has properly considered locality and the claimant’s objections to it.

As for the short notice point, Mr Crossley submits, 56 Sandhurst Avenue was known by the claimant only to be emergency accommodation which she could be required to vacate at very short notice, hence the requirement that there would be only minimal belongings kept there.

The Facts

The Claimant on arrival in the United Kingdom went first to Sunderland where she declined an offer of permanent accommodation, then moved to Leeds where she presented as homeless in June 2008. She was provided then with emergency temporary accommodation pursuant to Section 188 of the Act initially accommodated in bed and breakfast accommodation for three nights, and then moved into further emergency accommodation at 56 Sandhurst Avenue, Harehills, Leeds on 27th June 2008, where she and her children have remained since.

56 Sandhurst Avenue is a 2 bedroom private sector leased emergency accommodation. In accepting such accommodation, the claimant signed an occupancy agreement. The relevant terms of the agreement are at paragraph 5 of the statement of Ms Patricia Binns, Housing Adviser in the Emergency Accommodation Team, Housing Options Service of Leeds City Council. The accommodation was only available on a temporary basis; the length of stay depended on the availability and suitability of ‘move on’ accommodation and the need to have vacancies for those who become homeless and also require emergency accommodation; she and her family may be asked to move to alternative interim and temporary accommodation at any time; if that became necessary she would be given as much notice as possible.

Initially, it was being argued on behalf of the claimant that she ought to have had an interpreter before signing this agreement. However, Mr Dodd accepted that, once it was made clear that an interpreter had been provided when she signed an agreement in similar terms for the emergency bed and breakfast accommodation only days before, the argument fell away.

The decision, in respect of which judicial review is sought, was made by Ms Binns, who sets out background to her reasoning and the reasoning itself in her two witness statements.

On the 12th July 2008 the Council made a decision that the claimant was intentionally homeless from her previous accommodation in Sunderland with 28 days notice to vacate her emergency accommodation at 56 Sandhurst Avenue. She requested a review of that decision on the 22nd September 2008. A decision was then made to accommodate her pending the review under the provision of section 188 of the Act. It is common ground that she continued to occupy under the original occupancy agreement. In December the claimant was told specifically that she must bid for properties on the Register, which includes not only Council but also privately leased accommodation, on the simple basis that otherwise she would not be allocated permanent accommodation. A Review decision of the 4th December upheld the homelessness decision and she had 28 days to vacate 56 Sandhurst Avenue. She issued a Notice of Appeal to the County Court on the 23rd December. A decision was made that she could remain at 56 Sandhurst Avenue pending the outcome of the appeal. Within those proceedings the Council agreed to carry out a second review and to exercise its power to accommodate the claimant pending that second review. It is under this power that she is currently accommodated. The outcome of the second review is not yet known. Should that lead to an appeal, then the obligation to provide temporary accommodation is exercised within the County Court proceedings under section 204 of the Act. Until then the claimant’s only recourse is to the Administrative Court for judicial review.

Ms Binns took over responsibility for the claimant’s emergency accommodation in January 2009. The claimant was not bidding for properties and had refused a temporary emergency accommodation support worker (‘TEAS worker’). There was also the concern that the Council’s review panel could uphold the original homelessness decision which could result in the emergency accommodation being terminated. She was given advice on the 5th February how she should be bidding for properties and given a warning in respect of not bidding. She now asked for a TEAS worker. She started bidding for properties, but in view of the properties for which she was bidding which were exclusively Council properties, some of which had greater accommodation than she and her family needed, Ms Binns formed the view that it was in the best interests of the claimant and her children to be moved to Tier 1 accommodation.

Mount Cross Hostel is referred to by Ms. Butt at paragraphs 21 onwards in her statement as "Tier 1 accommodation". Tier 1 accommodation provides a greater level of support and is intended to facilitate a move into secure accommodation more quickly. Further, in moving persons from emergency accommodation to Tier 1 accommodation it allows places to be available as necessary when persons present as emergency homeless.

The claimant attended the office and saw a colleague of Ms Binns on the 5th March. Although she was advised of a private rented sector scheme, the claimant declined. Ms Binns, whilst trying to locate Tier 1 accommodation for the claimant, learnt of a Leeds Housing Federation property in the Beeston area of Leeds, which would have been equivalent to Tier 1, but the claimant refused it. On the 11th March Ms Binns learnt of a vacancy at Mount Cross Hostel for a large self contained 1 bedroom flat. She was advised that there were two other Eritrean women already living there with very young children, who were Tigrean speakers. She took into account from her own previous knowledge that customers of Mount Cross Hostel have good access to local shops and supermarkets, a nursery for children and are allocated a ‘Key Support Worker’ with access to staff 24 hours a day.

Ms Binns took into account the following: all the information as held on the Council’s records; the fact that she had been accommodated in emergency accommodation in Harehills for some 8 months; that she had sought accommodation in Leeds to be part of the Eritrean community; the claimant’s approach to bidding for permanent accommodation and how long it would take if she continued in that pattern of bidding; the nature of the accommodation at Mount Cross Hostel and the support available; the fact that there were two other Eritrean families there; the distance between Mount Cross Hostel and the City Centre and transport links to Harehills by 2 buses. Having taking all these factors into account she decided that Mount Cross Hostel would be suitable for the claimant and her family.

At Ms Binns’ request the claimant attended the office on the 12th March and was told that the Council required her to move to Mount Cross Hostel in accordance with the occupancy agreement she had signed for 56 Sandhurst Avenue. The claimant was upset and stated she did not want to move and gave her reason that she wanted to be close to her church. Ms Binns advised her that Mount Cross Hostel would only be temporary and she could bid for properties in the Harehills area; that she could still access the church by using the bus. A senior manager became involved and the meeting ended with the claimant accepting that she would have to move, but that she needed at least 7 days notice.

The evidence from Mount Cross Hostel is that they expect the customer to sign straightaway and to take up residence within 2 days, although in this case they were prepared to allow 4 days (taking account the 2 days they are allowed to be away from the Hostel). In the event, the claimant consulted a solicitor at Shelter who managed to negotiate 6 days, which ultimately became 7 days.

The claimant raised concerns about moving her belongings, but the occupancy agreement specifically allows for only the minimum of personal belongings for this very reason. Concerns about a cot were resolved.

The claimant was advised that her emergency accommodation at 56 Sandhurst Avenue was being terminated from Monday 16th March 2009.

In my judgment, Ms Binns plainly gave detailed and careful consideration to the housing needs of the claimant and her children. She was to a certain extent constrained by the fact that they were in emergency accommodation which could be required at any time. Further, it had become clear to her that, unless there was a move to Tier 1 temporary accommodation, there was little prospect of the claimant making realistic bids for permanent housing. There was also, it seems to me, a legitimate concern that if the second review went against her, then her emergency accommodation would be terminated. I am satisfied that Ms Binns was fully aware of the needs of this family unit to be housed within accessible reach of the Eritrean community in Leeds, in particular, the claimant’s close ties with her church in Harehills; that Ms Binns took account of the availability of transport links to Harehills, whilst the claimant was in the temporary accommodation to be provided at Mount Cross Hostel; that she balanced the temporary distancing from Harehills with the benefits of the support that she would receive at Mount Cross Hostel.

Further, I am satisfied that Ms Binns had considered alternative temporary accommodation for the claimant, which she had refused. Whilst in theory Ms Binns could have considered leaving the claimant at 56 Sandhurst Avenue as one possibility, her decision to move the claimant and her children from emergency accommodation to Tier 1 accommodation was logical and designed to promote a permanent solution to the housing of this family. Whilst it is true that Ms Binns did not use the term ‘location’ in her statements, I am satisfied that the discussions she held with the claimant plainly centred around the issue of location; that she took into account all factors that are set out in the Guidance (Footnote: ¹).

I am satisfied, therefore, that in all respects the decision of the Council involved a move to accommodation which was not only suitable in its provision of accommodation for the claimant and her children, but also, insofar as Mount Cross Hostel was designed only to be temporary until a permanent solution could be found, suitable also in location.

That leaves the issue whether the notice to move was too short given that the claimant had been at 56 Sandhurst Avenue for some 8 months. It seems to me that efforts had already been made to move the claimant into Tier 1 accommodation or its equivalent, but that those efforts had been met with little co-operation. Perhaps that is not surprising, since the claimant was obviously happy to remain at 56 Sandhurst Avenue and no one had suggested that in fact it had been required to house another family on an emergency basis. Nevertheless, I am satisfied that the claimant was fully aware that she could be required to move at very short notice; that that was the reason why they were only allowed minimal belongings. The fact that she did counter with a request for 7 days notice supports that awareness. On the other hand, the difficulty that Ms Binns faced was that Mount Cross Hostel places became available at short notice and needed to be accepted at very short notice. I consider that in all the circumstances Ms Binns’ decision was logical and did not infringe the claimant’s Article 8 rights.

It may well be that the claimant did not fully understand the decision making process and may have thought that the longer she remained at 56 Sandhurst Avenue the better chance she had of receiving longer notice of having to move. However, it is clear to me that the claimant’s objection to having to move was not so much the short notice, but rather the having to move further away from the Eritrean community in Harehills than she wanted.

Whilst I have great sympathy for the claimant and her children in a country which is not familiar to her, I am satisfied that the reasoning of the Council was designed to be in her best long term interests.

For these reasons the application for judicial review is dismissed.