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Commonly accommodation offered to a homeless applicant is labelled as either:

1. Emergency;

2. Temporary; or

3. Permanent.

Accommodation is labelled as emergency if it has been offered under the interim duty to accommodate (s.188 Housing Act 1996). The interim accommodation duty applies when there is reason to believe that an applicant may be homeless, eligible and in a priority need.

Accommodation is labelled as temporary if it has been offered under the main housing duty (s.193(2) Housing Act 1996). The main duty applies when the council is satisfied that an applicant is homeless, eligible, in a priority need and not intentionally homeless. Although labelled as temporary in practice temporary accommodation can last many years. “More than one in five of those in temporary accommodation in London have been in it for at least five years” (Revealed: homeless children spending entire lives in temporary housing in England | Homelessness | The Guardian).

Accommodation is labelled as permanent if it is a final offer of an assured or an assured shorthold tenancy with a private landlord or a housing association (s.193(6)(cc) and s.217(1) Housing Act 1996), or an introductory/secure tenancy with the council.

All accommodation offered by a council while carrying out its homeless duties (under Part 7 of the Housing Act 1996) must be suitable (s.206(1) Housing Act 1996). Key factors are:

• the needs and circumstances of the household, including s.11 of the Children Act 2004 which places a duty on public bodies to consider the wellbeing of children when carrying out their functions;
• s.149 of the Equality Act 2010, which introduced the Public Sector Equality Duty, which places a duty on public bodies to eliminate discrimination, advance equality and foster good relations for disabled persons;
• the location of accommodation;
• whether the accommodation is affordable;
• slum clearance and overcrowding;
• the Housing Health and Safety Rating System; and
• licensing e.g. of HMOs.

As a minimum, the council should ensure that any accommodation is free of category 1 hazards, and is fit for human habitation (R v Exeter CC ex parte Gliddon and Draper (1984) 14 HLR 103, QBD).

Importantly, the suitability of accommodation can change over time. It is recognised by the court that somewhere might be suitable for occupation for a short period while the council is looking for alternative accommodation. The same accommodation might not be suitable if it is to be occupied for a longer period.

The Secretary of State has considered that the limited circumstances in which B&B accommodation may provide suitable accommodation could include those where:

• (a) emergency accommodation is required at very short notice (for example to discharge an interim duty to accommodate); or,
• (b) there is simply no better alternative accommodation available and the use of B&B accommodation is necessary as a last resort (paragraph 17.44 of the Homeless Code of Guidance).

B&B accommodation means accommodation (whether or not breakfast is included):

• (a) which is not separate and self-contained premises; and
• (b) in which cooking facilities are not provided, or any of the following amenities is shared by more than one household:
  • (i) a toilet;
  • (ii) personal washing facilities; or,
  • (iii) cooking facilities.

People whose household includes dependent children or a pregnant woman must not be housed in bed and breakfast accommodation unless there is no other suitable accommodation available, and only for a maximum of six weeks (Homelessness (Suitability of Accommodation) (England) Order 2003 SI 2003/3326).

A person does not have a statutory right to an internal review of the suitability of emergency accommodation. The suitability of emergency accommodation can only be challenged by way of judicial review.

It is strongly advisable to accept any accommodation offered and if you are unhappy challenge the suitability when you have moved in, otherwise the council is likely to discharge its duty to house you.

Judicial review of emergency accommodation case law

In The Queen on the Application of Fokou v London Borough of Southwark (2022) EWHC 1452 (Admin) accommodation had been provided in North London by Southwark Council. Mr Fokou’s two children, aged 6 and 11, were in schools in Southwark. Mr F argued that the trip to the schools was taking 1 hour and 45 minutes each morning, so the children had to get up at 5 am and did not get home until the early evening, leaving them very tired. This was impacting on their health and wellbeing. For this reason, the accommodation was not suitable.

Southwark argued that the accommodation was suitable. Its own policy prioritised children with special educational needs or protection issues, followed by children who were scheduled to sit exams within 6 months. None of these factors applied, so as to prioritise the family for scarce emergency accommodation. In addition, the best journey time was 45-55 minutes and Southwark suggested Mr F was taking a slower route for financial reasons. Mr F could seek school places in North London.

The Court declined to order interim relief. There was not a sufficiently strong case of breach of s.11(2) Children Act 2004 or Housing Act 1996 s.188 duty. While Mr F’s reluctance to change the children’s schools while his housing position was precarious and likely to change in the near future was understandable,  there was not a sufficiently strong challenge to the suitability of the current accommodation (https://nearlylegal.co.uk/2022/08/homelessness-suitability-and-distance-to-school/).

YR, R (On the Application Of) v London Borough of Lambeth (2022) EWHC 2813 (Admin). Ms YR had applied to Lambeth as homeless as single mother of seven children whose ages ranged between 4 months and 16 years. Lambeth offered a four bedroom property in East Tilbury, Essex, as interim accommodation. Ms YR objected to the property, pointing out the time and cost of travel to central London, the disruption to her children’s education, the distance from her support network with her infant child, and the relative difficulty of obtaining employment as a Spanish speaker in the area. Ms YR pointed out that her eldest child was starting Year 11 and that Lambeth’s own Placements Policy meant that the household should have been in ‘Group B’ and prioritised “for accommodation within Lambeth and its ‘local area’ (namely, adjacent boroughs or within approximately 30 minutes travelling time on public transport from any Lambeth boundary)”.

The High Court found in Ms YR’s judicial review that the housing needs assessment and personal housing plan under s.189A Housing Act 1996 were unlawful.

Firstly, there was no reference “to the needs of the children and the disruption that the provision of interim accommodation outside the borough, and a consequent move of school, would cause to their education. Those were ‘key needs’ for s 189A purposes, the ‘nuts and bolts’ of any lawful assessment”.

Secondly, “no reasonable authority with the information available to the Defendant would have failed to undertake inquiries as to the disruption to the children’s education if they were required to move school before concluding accommodation far from their schools was ‘suitable’ for the purposes of s 206 and that it was not ‘reasonably practicable’ to accommodate them in or near Lambeth”.

It was held that s.189A created “a statutory duty to provide a written assessment and housing plan that is sufficiently reasoned to demonstrate that the authority has addressed the statutory matters in s.189A(2)(a)-(c), including ‘what accommodation would be suitable’ to the needs of the applicant and her household. In considering that question the authority must apply the test of ‘suitability’ in s.206: see s.205(3). The authority must also have regard to the matters required by s.210, including the Homelessness Order (disruption etc. to a child’s education), as well as the welfare considerations in s 11(2) of the Children Act 2004. Where, as here, s 188(1) accommodation is provided after, and in the light of, a s 189A housing assessment and plan, the reasoning in the assessment must also demonstrate that the authority has addressed the statutory suitability factors for the purposes of s.188(1).”

In addition, the local authority must demonstrate that it has applied its placement policy properly. That requires a reasoned decision, even if not prescribed by statute.

Lambeth’s argument that a s.188(1) decision was separate to the s.189A assessment duties was not accepted.

It was found that the decision that the property was suitable was irrational. “In view of the conclusions I have already reached, it also follows that the Council acted irrationally in deciding that the Property was ‘suitable accommodation’ for the purposes of s 188(1), taken with s 206 and s 208, read in the light of s 11(2) of the Children Act 2004, based as it was on inadequate and inaccurate information.” (https://nearlylegal.co.uk/2022/11/assessment-of-housing-needs-and-cascading-unlawfulness/).