Case brief: Powers of local authorities to accommodate people with no recourse to public funds
Posted on 12/04/21
Robert Brown, solicitor in the Strategic Litigation Team at Shelter, explains the background of a recent High Court decision about powers of local authorities to accommodate rough sleepers with no recourse to public funds.
R (Ncube) v Brighton and Hove City Council
 EWHC 578 (Admin)
11 March 2021
Councils have powers to accommodate homeless people who have no recourse to public funds and are not eligible for homelessness assistance if there is an emergency or disaster which involves danger to life, as during the Covid-19 pandemic, or for public health reasons.
Mr Ncube was a former asylum seeker. His asylum application in the UK had been rejected so he had no recourse to public funds. His request to the Home Office for support as a ‘failed’ asylum seeker under section 4 of the Immigration and Asylum Act 1999 had also been denied and was under appeal. He was vulnerable because of several health issues and was destitute.
In September 2020, he started sleeping rough after his sister asked him to leave her place due to overcrowding. He approached Brighton and Hove City Council for assistance, but the Council rejected his homelessness application on the basis that he was not eligible due to his immigration status. The Council insisted that they could not help him because they were prevented from doing so by section 185 of the Housing Act 1996 (HA 1996) and that, as a former asylum seeker, Mr Ncube could only be assisted by the Home Office.
Mr Ncube applied for judicial review of the Council’s decision.
Mr Ncube argued that during the Covid-19 pandemic, the Council had been directed to comply with the government’s ‘Everyone In’ scheme and provide accommodation to anyone sleeping rough, irrespective of their immigration status and lack of eligibility under the homelessness legislation. He claimed that the Council did not consider exercising additional powers outside of Part 7 HA 1996 to provide accommodation to homeless people in emergencies situations, including under:
- section 138 of the Local Government Act 1972 (LGA 1972) which gives powers to councils to take action and provide accommodation in the context of an emergency involving danger to life
- section 2B of the National Health Service Act 2006 (NHSA 2006) which gives a general power to councils to improve the public health of people who live in their area
The council argued that:
- section 185 HA 1996 prohibited them from providing Mr Ncube with accommodation as he was not eligible for homelessness assistance under Part 7 and that accommodation via other means would be a way of circumventing this prohibition
- the definition of an ‘emergency’ for the purposes of section 138 LGA 1972 would not be applicable in the circumstances of this case as they stated that the Brighton area was in tier 1 at the time of Mr Ncube’s homeless application and that infection rates were low at that point
- the list of services available under section 2B NHSA 2006, whilst not exhaustive, did not relate to the provision of accommodation
The Court confirmed that councils do have powers under section 138 LGA 1972 and section 2B NHSA 2006 to accommodate people who are not eligible under the homelessness legislation, and that those powers fall outside of the restrictions imposed by section 185 HA 1996.
The Court found that the Covid-19 pandemic constituted an emergency, and there had been a danger to the lives of the inhabitants of Brighton even at the time when Brighton was in Tier 1 (when social distancing, wearing masks and the prohibition of more than six people in a group were all in force). The risks became more significant in November 2020 and then on 4 January 2021 when the lockdown was put in place. It also found that Brighton had rightly identified that people sleeping rough were a particularly vulnerable group, and that accommodation should be provided both for their own safety and to manage infection control. Accordingly, accommodation provision could be used as part of a response to that emergency.
Further, the Court held that the use of powers under section 138 LGA 1972 is not a way to get around the prohibition in section 185 HA 1996. Paragraph 62 of the judgment states that ‘The ineligibility for assistance is expressed in section 185 (1) to be under that part of Housing Act 1996. That is not to say that there cannot be an independent right to assistance not under that part, but under a different statutory provision.’
It should be noted that section 138 LGA 1972 contains a power rather than a duty. The Court said at paragraph 64 of the judgment that ‘the discretion to provide temporary accommodation is not a duty which [the council] 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.’
The Court also decided that the Council had the power to provide accommodation under section 2 NHSA 2006, as part of their duty to take such steps as they considered appropriate for improving the health of the people in their area. That power can be used to accommodate people who are not eligible for homelessness assistance under section 185 HA 1996, where the accommodation is provided in order to minimise any risk to health and it is not intended to circumvent the prohibition contained in it. Section 185 HA 1996 does not apply to NHSA 2006 as this is a separate statutory regime relating to public health functions.
Although this does not mean that a council has a duty to accommodate an individual under the NHSA 2006, it does mean that councils can legitimately provide accommodation to improve public health. Councils commonly do so in periods of extreme weather under their severe weather emergency protocols (SWEP), and they are not prevented from accommodating people in these circumstances who are not eligible for homelessness assistance under this power. Or as was put by the Court in the judgment at paragraph 77 ‘The question in all cases is whether the particular exercise of powers by the provision of accommodation or other assistance is within the target of addressing primary health needs’.
Given that the Court explicitly confirmed that the pandemic is an emergency and a public health issue for the purposes of section 138 LGA 1972 and section 2B NHSA 2006 respectively, it is now clear that councils can accommodate people who are not eligible for housing support under Part 7 as part of the ‘Everyone in’ scheme or any successor initiatives.
Councils must consider whether there is an emergency or disaster (actual or imminent) involving a danger to life and affecting their area or some of their inhabitants. If so, they must consider whether accommodation for homeless people is necessary to avert, alleviate or eradicate that emergency or disaster pursuant to section 138 LGA 1972. They should also consider whether there is a need to provide accommodation in order to improve the health of the people in its area (that is the health of rough sleepers or the risks to others if rough sleepers are not accommodated).
The question then arises as to what happens to homeless people who are not eligible for homelessness assistance beyond the pandemic and after the end of lockdown.
The powers available under section 2B NHSA 2006 are not emergency specific and are potentially wide ranging. As long as the provision of accommodation is used for the purpose of promoting a public health need, it will be lawful under section 2B. The Court declined to outline examples of how this might be used so it is likely that further guidance or case law will be required on this point.
Shelter intervened in the case and are very grateful for the advice, support and representation of Freshfields Bruckhaus Deringer LLP, and to Liz Davies, Connor Johnston and Adrian Berry of Garden Court Chambers, all of whom acted on a pro bono basis.