Disability Discrimination and Part 7 Housing Act

As part of a Local Authorities duty they have to ensure the property (as in any accommodation under part 7 including temporary)  is “suitable” for the applicant and their family. There is a raft of Legislation, guidance and case law on the topic which for the sake being succinct will not cover here.

If the property offered is a Final / Permanent offer for accommodation by the Authority the advice is generally do not reject the offer unless wholly unreasonable (wednesbury level) and pursue a s202 review to protect the duty owed. However if the property is wholly unsuitable or is temporary accommodation (pending a decision or review), the only recourse is Judicial Review.

The Law

When a local housing authority accepts the ‘full’ housing duty under Part 7 Housing Act 1996 (“HA 1996”), section 193(2) provides that unless they refer the application to another local housing authority, they “shall secure that accommodation is available for occupation by the applicant.” Accommodation secured in discharge of s. 193(2) must be “suitable”: s. 206(1).

The Secretary of State has provided by Order that in the case of applicants with “family commitments” accommodation provided under section 193(2) in “B & B accommodation” is automatically to be regarded as unsuitable, except (under Article 4) –

(a) where no accommodation other than B&B accommodation is available for occupation by an applicant with family commitments; and

(b) the applicant occupies B&B accommodation for a period, or a total of periods, which does not exceed 6 weeks.

Article 3 Homelessness (Suitability of Accommodation) (England) Order 2003

Definitions are set out at Article 2 of the 2003 Order which provides, in so far as relevant, that

 “applicant with family commitments” means an applicant– […]

 (c) with whom dependent children reside or might reasonably be expected to reside;

“B&B accommodation” means accommodation (whether or not breakfast is included)–

(a) which is not separate and self-contained premises; and
(b) in which any one of the following amenities is shared by more than one household–

(i) a toilet;
(ii) personal washing facilities;
(iii) cooking facilities,

but does not include accommodation which is owned or managed by a local housing authority, [a non-profit registered provider of social housing] or a voluntary organisation as defined in section 180(3) of the Housing Act 1996.

The Code of Guidance for local authorities, July 2006 edn. (to which local authorities must have regard by virtue of s. 182 HA 1996) expands upon the circumstances in which B & B accommodation can be provided:

 17.24. Bed and Breakfast (B&B) accommodation caters for very short-term stays only […] Consequently, where possible, housing authorities should avoid using B&B hotels to discharge a duty to secure accommodation for homeless applicants, unless, in the very limited circumstances where it is likely to be the case, it is the most appropriate option for the applicant. […]

 17.26. Housing authorities should, therefore, use B&B hotels to discharge a duty to secure accommodation for applicants with family commitments only as a last resort. […]

17.34. The Secretary of State considers that the limited circumstances in which B&B hotels may provide suitable accommodation could include those where:

(a) emergency accommodation is required at very short notice (for example to discharge the interim duty to accommodate under s.188); or

(b) there is simply no better alternative accommodation available and the use of B&B accommodation is necessary as a last resort.

 17.35. The Secretary of State considers that where housing authorities are unable to avoid using B&B hotels to accommodate applicants, they should ensure that such accommodation is of a good and is used for the shortest period possible.

The Local Government Ombudsman found in its recent report (complaint no 11 005 774 against Croydon, 12 December 2012) that the policy of automatically placing homeless applicants with children in B&B accommodation amounted to maladministration.

In determining whether accommodation is suitable, authorities are required to have regard to Pts 9 and 10 of the Housing Act 1985 (slum clearance and overcrowding) and to Pts 1–4 of the Housing Act 2004 (housing conditions, licensing of houses in multiple occupation, selective licensing of other residential accommodation and control provisions): s. 210(1) . This list of considerations is, however, not exhaustive: rather, the accommodation has to be suitable for the person or persons to whom the duty is owe: R. v Brent LBC Ex p. Omar (1991) 23 H.L.R. 446 QBD; R. v Haringey LBC Ex p. Karaman (1997) 29 H.L.R. 366 QBD.

Authorities are entitled to take into account a variety of factors, including their limited housing stock and the period of time for which the applicant will occupy the accommodation. It may not, however, fall below the minimum standard which no reasonable authority could consider suitable for the particular applicant, depending on his needs and circumstances: R. (on the application of Sacupima) v Newham LBC (2001) 33 H.L.R. 1 QBD.

As part of their Housing Duty the Authority has to consider s49a and / or s.149 of the Equality Act 2010 as verified in Pieretti v London Borough of Enfield [2010] EWCA Civ 1104. The code of guidance further provides:

 11. Section 49A of the Disability Discrimination Act 1995 (added by the Disability

Discrimination Act 2005) introduces a new duty to promote equality for disabled people.

It requires public authorities to exercise their functions with due regard to the need to:

• eliminate unlawful discrimination against disabled people;
• eliminate harassment of disabled people that is related to their disabilities;
• promote equality of opportunity between disabled people and other persons;
• take steps to take account of disabled people’s disabilities (even where that involves treating disabled people more favourably than other persons);
• promote positive attitudes towards disabled people; and
• encourage participation by disabled people in public life.

Authorities will be required to publish a Disability Equality Scheme every three years setting out how they will implement the duty to promote equality in their own context.

 As with the duty to promote race equality, this is a positive duty rather than a reactive one and authorities will need to consider the implications for the delivery of their homelessness services.

The Disability Rights Commission has published a statutory Code of Practice on the Duty to Promote Disability Equality which will come into force in December 2006.

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Keep our disclaimer in mind when using the template below. It is a pre-action letter based on unsuitable accommodation after a fully duty has been accepted by the Local Authority.

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