Ncube, R (on the application of) v Brighton and Hove City Council

A local authority’s power to provide temporary accommodation to rough sleepers with no recourse to public funds is not confined to Part VII of the Housing Act 1996. The restrictions in section 185 do not prevent accommodation provided under a separate statutory scheme, provided that the power is used for that scheme’s proper purpose and not to circumvent section 185 or Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

Section 138 of the Local Government Act 1972 may authorise action during an emergency involving danger to life. Section 2B of the National Health Service Act 2006 may authorise accommodation as a public-health measure. Section 1 of the Localism Act 2011 does not provide a free-standing power to circumvent statutory restrictions.

The claimant was a failed asylum seeker and rough sleeper with no recourse to public funds. Brighton and Hove City Council refused accommodation under the Covid-19 “Everyone In” initiative, relying principally on his ineligibility under section 185 of the Housing Act 1996.

Before the claim was determined, the claimant obtained accommodation from the Home Office under section 4 of the Immigration and Asylum Act 1999 and moved outside the defendant’s area. The court nevertheless heard the discrete legal issue because it was of public importance, potentially affected many cases, and was not fact-sensitive. The central questions concerned the relationship between section 185 and other statutory powers to provide accommodation.

1. Academic claim. The claim had become academic after the claimant obtained Home Office accommodation. The court nevertheless exercised its discretion to determine the discrete legal issue because it was of public importance, potentially affected many similar cases, and could be considered without resolving claimant-specific facts.
2. Section 138. Covid-19 constituted an emergency involving danger to life, particularly during national lockdowns and, on the evidence, during the relevant period when Brighton was in tier 1. Section 138 provided a power, not a duty, to incur expenditure and take action necessary to avert, alleviate or eradicate the effects or potential effects of the emergency. Its four conditions had to be satisfied: an emergency or disaster; danger to life or property; likely effect on the authority’s area or inhabitants; and necessary action. The power could include temporary accommodation for rough sleepers with no recourse to public funds, provided it was used for the statutory emergency purpose and not to circumvent section 185 of the Housing Act 1996 or Schedule 3 to the Nationality, Immigration and Asylum Act 2002.
3. Section 2B. Although accommodation was not expressly listed, section 2B of the National Health Service Act 2006 was broad enough to permit accommodation as a step for improving public health. The provision imposed a target duty and left the authority a discretion as to appropriate steps. Accommodation could be provided to persons with no recourse to public funds where it addressed a genuine public-health purpose and did not circumvent section 185.
4. Section 180. Section 180 of the Housing Act 1996 permitted assistance to voluntary organisations concerned with homelessness, including assistance enabling them to provide accommodation. It did not create a power or duty to accommodate an individual directly.
5. Localism Act. Section 1 of the Localism Act 2011 did not provide a free-standing power to accommodate where section 185 otherwise prohibited the provision of accommodation. The court followed the reasoning in R (AR) v Hammersmith and Fulham LBC and the binding reasoning in R (Khan) v Oxfordshire County Council. The court did not decide the wider question whether the Localism Act might perform a human-rights compliance function in a different factual and statutory context.
6. Declaration. Declaratory relief was granted in limited terms. The defendant had powers under sections 138 and 2B to provide or secure temporary accommodation for rough sleepers during the pandemic, notwithstanding section 185, provided those powers were exercised for their proper statutory purposes and not to circumvent the statutory restrictions.