Guidelines are Good for You: Nzolameso v. City of Westminster, [2015] UKSC 22

Nzolameso v. City of Westminster, [2015] UKSC 22 is a case about a technical area of law — local housing authorities’ duties to house homeless persons — but which contains interesting passages on reasoned decisions and administrative guidelines.

N was evicted from a private property in Westminster and applied for local authority housing. The authority offered to place her and her family in Bletchley, near Milton Keynes, about an hour away. At issue here was whether this offer was one of “suitable” accommodation within the meaning of the Housing Act, 1996, given the personal circumstances of N and her school-going children.

Two points of general interest emerge from Lady Hale’s judgment for a unanimous court. First, a boilerplate decision letter (see para. 8) was insufficient to demonstrate that the authority’s offer of a house in Milton Keynes discharged its statutory obligations towards N:

There is little to suggest that serious consideration was given to the authority’s obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquiries made to see whether school places would be available in Bletchley and what the appellant’s particular medical conditions required. Those inquiries were only made after the decision had been taken. The review decision is based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in Westminster and why that had not been offered to her. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible. It follows that the authority cannot show that their offer of the property in Bletchley was sufficient to discharge their legal obligations towards the appellant under the 1996 Act…[or]…the Children Act 2004 (at paras. 36-37, emphasis added).

This was (as far as I can tell) a statutory appeal, but Lady Hale’s decision provides a further illustration of how reasoned administrative decisions may be necessary to facilitate the task of reviewing courts. In the absence of true reasons, a court may have no other option than to quash the decision and remand the matter to the decision-maker.

Lady Hale went on to extol the virtues of guidelines. She appreciated that local authorities’ management of the housing stock available for homeless persons is a delicate balancing act that must be performed on ever-shifting ground (at para. 38). Her preferred response to this reality was that each local authority “should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year”, as well as “a policy for allocating those units to individual homeless households” (at para. 39). These policies should be approved by democratically accountable officials and made publicly available. She continued:

This approach would have many advantages. It would enable homeless people, and the local agencies which advise them, to understand what to expect and what factors will be relevant to the decision. It would enable temporary letting teams to know how they should go about their business. It would enable reviewing officers to review the decisions made in individual cases by reference to those published policies and how they were applied in the particular case. It would enable reviewing officers to explain whether or not the individual decision met the authorities’ obligations. It would enable applicants to challenge, not only the lawfulness of the individual decision, but also the lawfulness of the policies themselves. Indeed, it would also enable a general challenge to those policies to be brought by way of judicial review. In some ways this might be preferable to a challenge by way of an individual appeal to a county court. But it may not always be practicable to mount a judicial review of an authority’s policy, and an individual must be able to rely upon any point of law arising from the decision under appeal, including the legality of the policy which has been applied in her case (at paras. 40-41).

There is no suggestion that the provision of public guidance is a statutory obligation. Rather, Lady Hale used the case as a springboard to offer some ‘best practice’ advice to local authorities. It is advice I happen to agree with for the most part, but I wonder whether she has pushed up against the boundaries of the judicial role. I also wonder whether local authorities are likely to publish guidelines that will facilitate judicial review applications against them. Indeed, I suspect that those most likely to be in breach of their statutory obligations would be the ones most likely to try to hide behind opaque decision letters. Good or bad, Lady Hale’s advice may be most helpful where it is least needed.

This content has been updated on June 18, 2015 at 20:55.