Homelessness in the High Court: Gatekeepers no more

Such practices have given rise to allegations of "gatekeeping" – that councils were denying households their statutory rights under Part 7 of the Housing Act 1996. As the largest local authority in the country, Birmingham City Council receives a disproportionate number of homelessness applications. In the cases of Aweys, Kelly, and Khazai, the court had found that its practices and procedures for dealing with those applications were unlawful.

It is against that background that Birmingham – and housing authorities generally – will welcome the judgment of the High Court in the case of Edwards v Birmingham City Council in which four claimants (Ms Edwards, Ms Cole, Ms Saeed, and Mr Norowol) sought to challenge alleged individual and systemic gatekeeping by the council's homelessness and housing options team.

The individual challenges had become academic by the time of the hearing (because the claimants were being housed). In relation to the systemic allegations the judge found that the individual errors in those claims fell very far short of proving any kind of systemic failure on the part of the local authority.

The allegations of gatekeeping and the court's findings

Turning applicants away:

• Ms Edwards alleged that she made repeated attempts to apply as homeless. The judge found that her evidence (which he described as "hopelessly confused") did not support that allegation. The court found that in minor respects the council had not followed its own procedures as to internal referrals to housing advisors but that these were inconsequential.
• Ms Cole alleged that she had attempted to make a homeless application but the council's position was that hers was "not an obvious homelessness case" in that she was a secure tenant of an under-occupied council property that was arguably unaffordable over the longer term. The court found that she did not in fact present as homeless, and in any event was seen by a housing advisor within the same timescale had she done so.
• Ms Saeed alleged that she had been repeatedly turned away but the evidence in support of this (including her statement that she attended a Birmingham council office in a different district) was not accepted by the court.

Failing to offer interim accommodation:

• The court found that Ms Edwards had not said at her initial appointment that she required interim accommodation. On receipt of a pre-action letter seeking interim accommodation, it had been provided. The court rejected the suggestion that it was only offered under threat of legal proceedings; the council had read the pre-action letter as Ms Edwards changing her mind. Unsuitable interim accommodation was provided on one occasion but that error was quickly remedied and the court described it as an idiosyncratic error rather than evidence of a systemic failure.
• Ms Saeed alleged that she requested, and was refused, interim accommodation. She relied on a document on which "change of circumstances and require temporary accommodation" was written. The court found that that sentence recorded a discussion between Ms Saeed and the housing advisor in which the latter advised that were her circumstances to change in the future and she needed temporary accommodation she should contact the council.

Repeat application:

• The council conceded that it had applied the wrong test in relation to Mr Norowol's repeat application. The test applied by the council was whether there had been a "significant change of facts" since the first application, whereas the correct test is whether the subsequent application is made on "exactly the same facts" – a lower threshold. That failure was remedied by the council in response to a pre-action letter and was thus short-lived.

Delay in making a decision:

• This allegation was only pursued by Mr Norowol, whose application took 83 working days to complete (as against a target of 33 working days). However, the chronology of his application shows that it was characterised by missed appointments and misunderstandings (on both sides). The court was not convinced that the delay was unlawful in Mr Norowol's specific case, still less that it was evidence of any systemic failure.

What this means for authorities

The rather lengthy judgment is worth reading and will be welcomed by local authorities. The claims were in many respects poorly evidenced and the court accepted the council's version of events based in large part on their contemporaneous notes of appointments and interviews. The claimants sought to argue that the fact an application had not been recorded was evidence of poor record keeping, rather than evidence that it had not been made. The court rejected that suggestion, due in large part to the council's evidence of its procedures and the fact that these were, by and large, correctly applied. The important message is that clear and consistent record keeping, as well as regularly reviewed and updated protocols and procedures governing housing advice provision, are the key to evidencing good practice in this hotly contested area.

How Bevan Brittan can help

Bevan Brittan's housing team regularly advises local authorities on their housing duties and functions. Our team has a wealth of experience advising and acting in homelessness reviews and appeals. We can also act as a 'critical friend', ensuring that homelessness policies and procedures comply with the relevant law and guidance, and can advise on making section 184 and review decisions as robust as possible.