High Court rules that local authorities have powers to lawfully house people with no recourse to public funds during Covid-19 pandemic

Ncube, R (on the application of) v Brighton and Hove City Council [2021] EWHC 578 (Admin)

In a new judgment, the High Court has ruled that local authorities have powers under the Local Government Act 1972 and the National Health Service Act 2006 to lawfully house people with no recourse to public funds (NRPF) during the Covid-19 pandemic.

In Ncube, R (on the application of) v Brighton and Hove City Council [2021] EWHC 578 (Admin) (11 March 2021), the claimant (Mr Ncube) was a street homeless former asylum seeker and was therefore subject to an NRPF restriction. He applied to Brighton and Hove Council (the defendant) as homeless in September 2020, seeking accommodation during the Covid-19 pandemic.

The defendant refused to accommodate the claimant on the ground that section 185 of the Housing Act 1996 precluded it from providing accommodation or assistance to failed asylum seekers, and this was reflected in its Covid-19 accommodation policy. However, the claimant was in fact accommodated for several days after being granted interim relief following an urgent court application). In a subsequent High Court ruling issued on 9 October 2020 - [2020] EWHC 3646 (Admin) - Deputy Judge Obi ruled that the defendant did not have powers to accommodate and discontinued the interim relief.

Following eviction from the interim accommodation, the claimant was almost immediately re-accommodated in ‘Everyone In’ accommodation provided by the defendant via St Mungo's. He subsequently moved to Home Office accommodation in Swindon on 30 November 2020 after a successful application for support under section 4 of the Immigration and Asylum Act 1999 (that gives a ‘safety net’ power to accommodate to central rather than local government).

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The claimant brought a claim against the defendant, with support from Shelter, on the grounds that his status - as a person within Schedule 3, para 7 of the Nationality Immigration and Asylum Act 2002 and section 185 of the 1996 Act - did not preclude him from being accommodated under the defendant's Covid-19 accommodation policy.

In particular, the claimant and Shelter argued that powers exist that enable a local authority to assist rough sleepers who have no recourse to public funds -

• section 138 of the Local Government Act 1972 includes powers to act in order to deal with an emergency and public health duties which, in summary, require consideration of whether -
  • there has been an emergency or disaster or it is imminent or there is reasonable ground for apprehending such an emergency or disaster;
  • the type of disaster is one involving danger to life or property;
  • the Council is of the opinion that the emergency is likely to affect its area or some of its inhabitants; and if so
  • the Council may incur such expenditure as it may consider necessary to avert, alleviate or eradicate its effects or potential effects.
• section 2B of the National Health Service Act 2006 requires local authorities to fulfil an obligation to take such steps as they consider appropriate - that can include provision of accommodation - for improving the health of the people in their area;
• section 180 of the Housing Act 1996 empowers a local authority to provide assistance to voluntary organisations ‘concerned with homelessness or matters relating to homelessness’ (a power which is not affected by the exclusion in section 185 of the 1996 Act);
• section 1 of the Localism Act 2011 makes broad provision to enable a local authority ‘to do anything that individuals generally may do’ (Shelter contended that this must be read in a European Convention on Human Rights compliant way so that accommodation is provided where failure to do so would involve a breach of Convention rights even when this overrides exceptions to the general section 1 power in cases where pre-commencement limitation exist, such as section 185 of the 1996 Act); and
• the Localism Act 2011 only limits the prohibition under section 185 of the 1996 Act (as a pre-commencement provision) as regards a local authority accommodating failed asylum seekers if it is acting ‘qua housing authority’ and not in other capacities such as ‘qua social services authority' (an argument pursued by the claimant at this stage, but not by Shelter).

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As a preliminary issue, Mr Justice Freedman considers whether the claim is academic, finding that it is in the sense that the claimant is now being accommodated by the Home Office in the Swindon area. However, he also finds that the conditions for hearing the claim are met -

‘There is a question of law of importance beyond this case and potentially affecting many other applicants for accommodation. This refers to rough sleepers who are NRPF persons where the argument goes that it is unlawful for a local authority to provide even temporary accommodation due to statutory prohibitions about providing accommodation or assistance to such persons: see Housing Act 1996 section 185 paragraph 3 of Schedule 3 to the Nationality and Immigration Act 2002.

… The Court does not have to decide all aspects of [the defendant’s] decision as it applied to the circumstances of the Claimant, but the question as to whether as a matter of law his being a NRPF person was a bar to his receiving accommodation.’ (paragraphs 143 and 144))

Turning to consider the grounds relied on by the claimant and Shelter, Mr Justice Freedman rules that -

The defendant has the power to provide or assist in the provision of accommodation under section 138 of the Local Government Act 1972

In the context of a national lockdown, Mr Justice Freedman says that Covid-19 was rightly identified as an emergency by the defendant in its policy publications but it was wrong to argue that the pandemic did not give rise to an emergency for the purpose of section 138 powers -

‘… there is a power of the local authority to provide temporary accommodation under section 138 where the four conditions set out in paragraph 46 above are satisfied. The emergency and the danger to life give rise to a discretion to act. This is subject to the local authority being of opinion that the circumstances are likely to affect some of its inhabitants in which case it may incur expenditure "necessary to avert, alleviate or eradicate its effects or potential effects." The question for the purpose of this judgment is not how the local authority ought to exercise its discretion, but simply whether it has a power to accommodate even a NRPF person. In my judgment, this is provided that the power is not being used to circumvent the restrictions and prohibitions in section 185 of the Housing Act 1996 or Schedule 3 to the Nationality, Immigration and Asylum Act 2002. It is further to be noted that the discretion to provide temporary accommodation is not a duty which it owes to a street homeless person but is simply a part of its powers in a particular set of circumstances. If the person has other avenues of accommodation such that this emergency support is not required, then that is likely to be relevant to the exercise of the discretion.’ (paragraph 64)

The defendant has the power to provide or assist in the provision of accommodation under section 2B of the National Health Service Act 2006

Identifying that the key question is whether the particular exercise of powers by the provision of accommodation or other assistance by a local authority is within the target of addressing public health functions, Mr Justice Freedman holds that -

‘An initiative such as the accommodation under the ‘Everyone In’ scheme or a successor initiative in order to save lives is capable of being an attempt to address its public health functions permitted under the 2006 Act. It is important to note that this part of the judgment is to the effect that there may be powers outside the Housing Act 1996 to justify accommodation under the ‘Everyone In’ scheme or a successor scheme even of NRPF persons. It is not desirable in this judgment to outline theoretical examples of how this may work. It suffices if an initiative to remove rough sleepers from the streets during the pandemic to reduce the risk to life of the sleepers and the persons with whom they may have contact might be permitted under section 2B.

How far this may go is a question of fact and degree and intention in each case. The question would be whether it would be seeking to meet a public health need or a way of seeking to circumvent restrictions such as section 185 of the Housing Act 1996.’ (paragraphs 78 and 79)

Section 185 of the 1996 Act does not preclude the provision of accommodation or assistance in providing accommodation pursuant to the defendant's Covid-19 accommodation policy

Mr Justice Freedman holds that if a scheme is provided under a statutory scheme separate from Part VII of the 1996 Act (such as under section 138 or section 2B) and it is not used to circumvent section 185 of the 1996 Act, then the local authority can exercise the power to accommodate under that scheme.

Section 180 of the 1996 Act does not assist in connection with whether a local authority can provide accommodation directly

As section 180 is only a way of providing assistance to a voluntary organisation such as St Mungo's, Mr Justice Freedman holds that this provision is of no help.

The Localism Act 2011 does not give rise to a free-standing power to accommodate

While consideration of the 2011 Act raises complex issues that are considered at length, Mr Justice Freedman concludes that it does not assist -

‘… [it] does not require local authorities to do anything. Insofar as it gives rise to powers, to the extent that no other statutory scheme is in place as regards accommodation, the 2011 Act is not intended to override or circumvent the prohibition in section 185 Housing Act 1996.’ (paragraph 155)

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As a result of these findings, Mr Justice Freedman holds that the defendant proceeded on a mistake as to the law when deciding it had no power to accommodate the claimant. In addition, Mr Justice Freedman suggests wording for a Declaration to reflect the judgment that includes the following in respect of section 138 and section 2B -

(1) It is declared as regards the provision of temporary accommodation pursuant to the "Everyone In" scheme or a successor initiative to street homeless persons in order to save lives alleviating the effect of the Covid-19 pandemic:

(a) the Defendant has powers under section 138 Local Government Act 1972 in the context of an emergency involving danger to life affecting the street homeless, to take action to provide accommodation or secure assistance for them to avert, alleviate or eradicate the effect of Covid-19;

(b) the duty under section 2B National Health Service Act 2006 is capable of permitting the provision of temporary accommodation by the Defendant as a step for improving the health of the people in the area;

notwithstanding that some of the recipients may be persons who are ineligible for assistance under section 185 Housing Act 1996, provided that the foregoing is not used to circumvent the restrictions of section 185 Housing Act 1996 or schedule 3 to the Nationality and Immigration Act 2002.’ (paragraph 162)

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Welcoming the outcome of the case, solicitor at Shelter Legal Robert Brown said -

‘This judgment will have major implications for local authority homelessness services. Not everyone who is ineligible for homelessness assistance have been accommodated during the pandemic because the government’s guidance on ‘Everyone In’ wasn’t clear about who was entitled to help. That ambiguity has now gone.   

Now the court has made clear what powers there are to help people who are otherwise ineligible for support - council practice needs to change. The government must consider this judgment carefully, and issue explicit guidance to councils confirming these powers can and should be used to bring everyone in.’

Source: High Court rules councils can lawfully accommodate street homeless people with ‘No Recourse to Public Funds’ – will the government now provide proper guidance?