Challenging unsuitable B&B accommodation

The High Court’s recent judgment in R (Pickford) v Sandwell Metropolitan Borough Council [2024] provides insight into the provision of B&B accommodation to homeless applicants with family commitments and when such accommodation will be considered unsuitable. 

The judgment considers the Homelessness (Suitability of Accommodation) Order 2003 in the context the local authority’s statutory duty to provide temporary accommodation for those with a priority need. 

Judge Tindall, sitting in the High Court, considered it a novel issue that had not previously been considered by the courts so the case provides helpful clarity on the type of accommodation that local authorities have a duty to provide to homeless applicants. 

Ms Pickford and her nine-year-old son lived in a one-bedroom flat rented from a private landlord in Sandwell, Birmingham from 2016 to 2023. On 9 October 2023, the landlord’s agent attended the property and required Ms Pickford and her son to vacate the premises due to flood damage, locking them out. 

Ms Pickford made a homelessness application to the local authority on 9 October 2023. 

The local authority provided Ms Pickford with temporary accommodation whilst it considered if she was eligible for more permanent housing. The temporary accommodation was a room in B&B style accommodation with communal cooking facilities. 

Ms Pickford judicially reviewed the local authority’s decision to provide her with the B&B accommodation, claiming amongst other things that they had breached their duty to provide suitable temporary accommodation.

In reaching its decision, the court decided that the temporary B&B accommodation was unsuitable and in doing so had particular regard to the 2003 order that states: 

"B&B accommodation is not to be regarded as suitable for an applicant with family commitments" although it allows for an exception, so that it may be permissible to provide such accommodation on an emergency basis for periods of up to six weeks if no other accommodation is available. 

If an applicant with family commitments has occupied B&B accommodation for more than six weeks, it is automatically unsuitable regardless of there not being other accommodation available.

An applicant with family commitments is – broadly speaking - someone who has children residing with them or is pregnant or someone living with a pregnant person or children. 

Judge Tindall usefully stated that the 2003 Order “removes that specific question of suitability from the local authorities’ judgment” and the “statutory language of Art.3 of the 2003 Order is strikingly more ‘hard-edged’ than the ‘blurry-edged’ statutory homelessness concepts typical of Part VII of the Act, like ‘suitability’ … which involve questions of fact and judgment for a local authority” [para 60].  

Judge Tindall went further to say the order acted like a highly focused form of "super-priority need", offering children and parents additional protection in the "suitability" of accommodation, reflecting a long-standing policy to promote children’s welfare. 

By virtue of this statutory “super priority need”, B&B accommodation was not suitable for Ms Pickford and her son as they had been residing in the hotel for longer than six weeks. Therefore, the council was in breach of its duty to provide suitable temporary accommodation. 

This case is a reminder of the usefulness and power of the 2003 Order in reviewing suitability of B&B accommodation. 

If a homeless applicant with family commitments is provided with B&B accommodation it is to be deemed unsuitable, unless there was no alternative accommodation and the B&B accommodation has been occupied for less than six weeks. If the B&B accommodation has been occupied for over six weeks it will always be unsuitable. 

Comments from senior associate Caroline Brosnan:

It is significant that this matter has only now come before the court for consideration. For twenty years the 2003 Order was so clear in its intention and effect that local authorities had not sought to test it.

It assists to make clear that local authorities cannot place families in such accommodation and seek to justify it on the basis that the housing crisis allows emergency style provisions like the use of B&B style accommodation to be used beyond a maximum six weeks period. The judge very carefully reviewed the evidence of harm that such accommodation can cause for a family, which is at the heart of why parliament made these special rules around family accommodation in 2003. Judge Tindall’s coining of the term ‘super-priority need’ is however unhelpful as it may suggest a change in the test to be applied when it is clear from his judgment that he does not intend to make any such change. Hopefully local authorities will review their current temporary housing stock in light of this decision and review families that have been placed in unsuitable B&B style accommodation and move them as soon as possible.