Andrew Arden QC and Annette Cafferkey consider the soaring and unlawful use of B&B accommodation to accommodate homeless families and conclude that, in the current economic and political climate, there will be no alternative to legal action. Introduction - statistics The most recent official figures (Statutory Homelessness: July to September quarter 2012 England (DCLG)) show an increase of 11% on the same quarter for 2011; in turn, this is a 34% increase on the same quarter for 2009, the year in which - for the first time since 2003 - homelessness numbers began to rise. At the beginning of 2011, 48,240 homeless households were in temporary accommodation; by the end of September 2012, this figure had risen to 52,960. One of the most worrying aspects of this trend lies in the increased use of B&B accommodation. By the end of 2009, of 53,370 homeless households in temporary accommodation, 1,880 were in B� by September 2012, some 4,350 out of 52,960. Nor is the increase solely in numbers: the proportion of homeless households in B&B is rising: as a percentage, the 2009 figure amounts to 3.5% of the total; the 2012 figure, 8%, i.e. more than double. According to Homeless Bound? Homelessness in London, the South East and East National Housing Federation, November 2012, of the 2012 homeless in B&B, 1,660 were households containing children or pregnant women, a 60% increase on the same quarter for 2011; 36% of those had been in B&B for six weeks or more; over the last two years, the number of such households in B&B for six weeks or more has risen by over 200%; no data is collected on the length of stays in B&Bs beyond the six week mark – no one knows how long families really stay in this type of accommodation. Two questions arise: first, what, if anything, is the government doing to address the escalating use of B&Bs to accommodate homeless families; and, secondly, what can be done to challenge an authority which persists in housing a homeless family in B&B accommodation. Government response It is worth pausing here to consider what happened last time the use of B&B accommodation posed a significant problem: the number had risen steadily through the late 1990s, reaching a high point of 13,240 at the end of 2003. In May 2001, the then government announced the establishment of a taskforce, the “B&B Unit”, the primary aim of which was to help homeless families out of B� subsequently, it became part of the Homelessness Directorate which worked with assorted agencies to implement a £35 million programme intended to ensure that - by the end of March 2004 - no homeless family with children had to live in B&B accommodation save in an emergency, and in any event for not more than six weeks. In December 2002, the government announced its intention to outlaw the use of B&B hotels for homeless families save in emergencies. The following year, the Homelessness (Suitability of Accommodation)(England) Order 2003 (2003/3326) was made, coming into force on April 1, 2004, which made it unlawful for authorities to comply with their duty to provide suitable accommodation in relation to homeless families - defined to mean those containing children or a pregnant woman - by using B&B accommodation for a total period of more than six weeks. By May 2004, figures collected by ODPM showed a 99.3% reduction in the number of such homelessness families living in B&B accommodation for longer than six weeks. The strategy had succeeded at a fell swoop and - broadly - continued to succeed until recent times. The current government has, so far, not formulated a targeted response to address the increasing use of B&B accommodation beyond its legal limits, even though the increase has persisted since 2009, preferring to focus on rough sleepers (Vision to End Rough Sleeping: No Second Night Out Nationwide DCLG (2011)) and homelessness prevention (Making Every Contact Count: A Joint Approach to Preventing Homelessness DCLG (2012)). While the new Housing Minister, Mark Prisk, had reportedly promised to ensure that the use of B&B accommodation would not become an “insurmountable problem” (Inside Housing, September 20, 2012) there is no news of anything specific to address the problem: it is apparent that the government is hoping that the use of private sector accommodation will alleviate the problem (Grant Shapps, then Housing Minister, HC Deb. May 23, 2012). This is, in our view, a vague and forlorn hope. As noted by The Homelessness Monitor: England 2012 (published by the Institute for Housing, Urban and Real Estate Research, Heriot-Watt University, the Centre for Housing Policy, York University, and Crisis) “almost all of the Coalition Government’s welfare reforms” will be “problematic with respect to their implications for homelessness, to a greater or lesser degree”. Thus, even though the private rented sector has doubled in the last 10 years (English Housing Survey: Headline Report 2009-2010 DCLG), which would suggest that it ought in theory be available to overcome the problem, the recent homelessness DCLG figures show that the volume of homelessness coming from this sector is already on the increase: homelessness resulting from the termination of assured shorthold tenancies rose by 103% across England (and by 156% in London) in the two years to 2011/12 (The Homelessness Monitor: England 2012). It is inevitable that this will dramatically increase once housing benefit caps apply. Of course, these changes are occurring against a backdrop of insufficient affordable housing. London Councils (which represents the 32 London Councils) has warned that by 2020 the city will be short of 221,700 for homes for “the poor”; it also noted that the supply of temporary accommodation in the private sector is dropping “dramatically”, supporting our conclusion in the last paragraph. Given increased demands on the private rented sector, rising rents and a shortage of affordable housing, it is impossible to see how the government’s policy of resort to the private sector to meet housing duties will actually work in practice. The increased use of B&B hotels to accommodate the homeless is accordingly and on the face of it certain to continue. Challenging the use of B&B accommodation That leaves challenge as the only way forward. An authority only complies with its duty to secure accommodation for the homeless if that accommodation is suitable (Housing Act 1996, s.206). The Homelessness (Suitability of Accommodation) (England) Order 2003 2003/3326 provides that B&B accommodation may only be considered suitable for the homeless with “family commitments” - defined to mean households containing a child or a pregnant woman - if the accommodation is not occupied for a period (or a total of periods) not exceeding six weeks. B&B beyond this point means - simply - that the authority is not discharging its duty and is therefore acting unlawfully. This is, then, a clear basis for challenge, either in the High Court by judicial review in relation to the interim duty pending enquiry or in the County Court by appeal under s.204 (and s.204A if no other accommodation is offered pending the appeal) otherwise. A shortage of housing resources is not a defence to such proceedings. The question, then, becomes whether the courts will make mandatory orders requiring authorities to provide suitable accommodation and, if they do so, how much time will be allowed, against what we may assume will be the plea that authorities simply cannot make sufficient other accommodation available. The reality, however, is not that it cannot be found so much as that authorities will claim that they cannot afford it, although “[counsel for the authority] rightly accepted that, if the law was as the Court of Appeal said it was, the authority will have to comply” (Lord Carnwath in Sharif v. Camden LBC [2013] UKSC 10 at [23]). On the other hand, “In the Court of Appeal Arden LJ disagreed with the way the duty was expressed in [Codona v. Mid-Bedfordshire DC [2004] EWCA Civ 925; [2005] H.L.R. 1]... She said that the duty in section 193(2) was expressed in terms of producing a result in the context of homelessness, which of its nature requires some urgent action. But the words of the subsection need to be seen in their overall context. The urgency of the action that is needed will vary from case to case, including the way the authority fulfils its interim duty under section 188(1). ... As Auld LJ said in Codona, ... the court will not make an order to force a local authority to do the impossible. On the other hand it may well feel that it is proper for it to step in where the time that is allowed to elapse becomes intolerable” (Lord Hope in Birmingham CC v. Ali; Moran v. Manchester CC [2009] UKHL 36; [2010] 2 A.C. 39; [2009] H.L.R. 41 at [4]). The criteria to which the courts are likely to have regard in responding to a challenge include: (i) the nature of the accommodation being occupied; (ii) the length of time that the breach has continued; (iii) the efforts the council has made to find other, suitable accommodation; and, (iv) the likelihood of accommodation becoming available in the future. Plainly, every case will turn on its facts; there is much to be said for the selection of a strong, first “test” case. Nonetheless, given that the use of B&B accommodation is so specifically and tightly prescribed, it must be considered that the prospects of securing injunctive mandatory orders, specifying a short time frame for compliance by the authority, are strong. The reality - which the courts need to accept - is that welfare provision costs and that the harder the prevailing economic conditions, the more it does so; put another way, the very purpose of welfare provision is to make up the shortfall left by the free market. It is not the job of the courts either to get local authorities off a hook on which government has explicitly chosen to hang them or to perpetuate or exacerbate the way that the poorest are being made to suffer the consequences of the current economic crisis.