Suitability in the time of Coronavirus

The conditions in which many statutorily homeless people live are frequently sub-optimal. Everyone has an anecdotal story of a family of five provided with temporary accommodation in a studio flat above a nightclub which is accessed via a dark alleyway, which the local authority insist is suitable. A frequent source of controversy is the use of hostels to discharge duties, where potentially highly vulnerable people are required to live with and share facilities with those who they do not know. 

The current public health crisis has brought this into sharp relief: how can anyone self isolate or shield when they are sharing basic facilities such as a bathroom or a kitchen; what happens where a fellow resident of the hostel is not practising social distancing? 

The government has provided some limited guidance on this issue. 

“If someone is unwell, they should minimise visiting shared spaces such as kitchens, bathrooms and sitting areas as much as possible, and keep shared spaces well ventilated if possible. They should aim to keep 2 metres from other people and not share a bed with another person.”

We could all be forgiven for reading that twice and, perhaps, concluding that it is drafted by someone who has only paper-based knowledge of a hostel and flimsy grasp of the severity of the current pandemic. A homeless single parent with two children living in one room in a hostel with shared facilities who becomes symptomatic cannot minimise visits to shared spaces and cannot avoid sharing a bed with the children if only one bed is provided. Likewise, a “vulnerable” person for the purposes of the Coronavirus Regulations cannot stop using communal facilities nor force co-residents to comply with social distancing. 

But does any of that render the accommodation unsuitable? The Court of Appeal has been clear that suitability is to be judged “to a Wednesbury minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant” (Auld LJ in Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925). 

Plainly the circumstances of the applicant include their health and the threat to the individual – consider cases of violence from a neighbour and section 177 of the 1996 Act. It has to be arguable that being unable to use communal facilities renders accommodation unsuitable. It likewise has to be arguable that occupying property which prevents compliance with government public health guidance is unsuitable. 

One difficulty, however, is that the definition of “vulnerable” in the Regulations almost certainly encompasses a disproportionate number of homeless people and to suggest that hostel accommodation is incapable of being suitable is unrealistic. Likewise, there is a respectable argument that a local authority cannot be responsible for the actions of other occupants if they are taking all the steps they can to ensure compliance by residents with the government requirements. 

Perhaps the answer lies in housing management: local authorities frequently use the transient nature of temporary accommodation as a basis for justifying derogation from the usual protections afforded to tenants (see R (ZH and CN) v LB of Newham and LB of Lewisham [2014] UKSC 62). That has always been at best a theoretical concept, perhaps now is the time to use it to ensure that those in shared accommodation are those who do not require self-isolation. 

This is a topic which Sarah Steinhardt, Jim Shepherd and I will explore in more detail at the next in our series of webinars on 4 May 2020. Sign up here, we are keen to continue the conversation.