LAG conference homelessness session: NowMedical and Right to Buy under scrutiny

If you missed the conference or this session in particular, here is a summary of the key cases and issues covered.
The session commenced with Manjit Mandair of Osbornes Law hightlighting the key cases relating to eligibility, intentionality and priority need.
Ncube v Brighton and Hove City Council was the obvious choice for discussion surrounding eligibility. This was the intriguing case about exactly what legal basis was used by local authorities to accommodate persons during COVID-19, despite – on its face – certain specific groups of people being ‘ineligible’ for housing according to the relevant sections of the Housing and Housing (Wales) Acts. It had initially been assumed in many quarters that this was a general Localism Act 2011 power – but the assumption was incorrect since the powers were actually under Local Government Act 1972 or NHS Act 2006.
Bullale v City of Westminster Council was an intentionality case, and one with significant potential utility, on the specific issue of when accommodation should be treated as ‘intervening settled accommodation’, breaking a chain of causation for the purpose of intentional homelessness. The local authority made a series of errors in the decision which led to a successful result for the applicant, failing among other things to note the commercial nature of the landlord-occupier relationship, and financial assistance from another authority to set up the tenancy.
Perrott v Hackney LBC was a priority need case, prompting a wider debate (below) about the role of NowMedical (the leading UK provider of housing medical advice to local authorities and housing associations). It concerned an all-too-familiar a situation where a report prepared by the appellant’s treating doctor, had been treated as merely ‘equivalent’ by the Hackney to an opinion sought from NowMedical. In the instant case, NowMedical had not examined the applicant, and their report pre-dated the latest GP report. The Court found that Hackney was perverse to suggest the reports were 'not significantly different' or explain why the report from NowMedical was preferred.
Justin Bates of Landmark Chambers followed on from Manjit and took a thematic approach to his case law summary, addressing a cluster of cases considering the duty to provide suitable accommodation under the ‘full’ (section 193) housing duty. This was under the heading ‘Time to Comply’ with even a Pink Floyd reference thrown in as a bonus.
Out of the three, R (M) v Newham LBC, R (Iman) v Croydon LBC and R (Elkundi and Others) v Birmingham CC, the latter was explained as being the most significant, potentially within the entire conference.
Iman, however, was considered notable for Croydon having considered accommodation as '9/10ths suitable' but nevertheless, unable to say it was suitable. An injunction for mandatory relief had been declined because Croydon were able to show they were doing what they could to find accommodation, given their limited resources. This case does not sit with the following and altogether more satisfactory Elkundi case, with the hope expressed that the appeals in the cases might be combined and heard together to ensure internal consistency.
Elkundi itself had four claimants who had been in temporary accommodation under full duty, and Birmingham ostensibly accepted that the accommodation provided was not suitable. Except, it then attempted to suggest that by unsuitable they didn’t actually mean unsuitable and that the existence of a ‘planned move’ list for suitable temporary accommodation was a sufficient remedy. Unable to accept the offered panacea, the High Court found the full duty did not have a ‘reasonable time’ qualifier: putting someone in unsuitable accommodation on a waiting list was not a lawful response.
While the equitable nature of judicial review means that courts will not make mandatory orders for local authorities to do the impossible, and the local authorities had raised a resources argument here, in most of the Elkundi cases the court did mandate the local authority to accommodate. The court's duty was to carefully consider steps taken and time and note where discretion was not used to make a mandatory order, a declaration of illegality is appropriate.
The discussion session prompted passionate views about NowMedical. Their maiden appearance in court reports appears as long ago as 2007, with sporadic appearances since. The reliance placed on them was recognised as an ever-growing issue.
The notion of England following Wales in ending Right to Buy was greeted with aplomb by the panel and some of the delegates, as a route of promoting investment in the social housing stock, which is almost currently non-existent from a local authority perspective and a significant barrier in ending homelessness. It remains to be seen whether the ideas gamely explored by these experienced practitioners in the field might be explored in more detail.
Finally, the issue of the dominance of larger city authorities was considered to not be solely attributable to their issues not being faced elsewhere. Many small or medium local authority areas simply do not have publicly funded advice available to challenge them, and sadly this has a consequence of a lack of accountability.
Housing, Legal aid, Practice and procedure
Description: homelessness update