Author: joe.ury
Company: University of London

Case No FC2 99/5451 & CCRTF 98/0815 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HON JUDGE PLATT
SITTING IN THE BOW COUNTY COURT

Royal Courts of Justice
Strand, London WC2A 2LL

Date: Monday 1 November 1999
Before:

LORD JUSTICE STUART-SMITH
LORD JUSTICE AULD
and
LORD JUSTICE SEDLEY

Between:
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| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS | (Appellant)
| and |
| NIPA BEGUM | (Respondent)
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(Transcript of the Handed Down Judgement of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040   Fax No 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Ranjit Bhose instructed by Russell Power, London, appeared on behalf of the Appellant

Mr Sylvester Carrott instructed by McMillan, Hamilton & McCarthy, London, appeared on behalf of the Respondent.

Mr James Bowen appeared on 1 November 1999.
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JUDGMENT

LORD JUSTICE AULD:     This is an appeal by the London Borough of Tower Hamlets ("the authority") from a decision of His Honour Judge Platt on 19th May 1998 in the Bow County Court, quashing a decision of the authority under Section 203 of the Housing Act 1996 reviewing and confirming its earlier decision that Nipa Begum was not homeless under the provisions of Section 175 of the Act and, therefore, not entitled to housing assistance. 

The 1996 Act, in Part VII, replaced the housing for the homeless provisions of Part III of the Housing Act 1985.   Section 175, which replaces Section 58 of the 1985 Act, provides for homelessness and threatened homelessness as follows: 
"(1)	A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he -
(a)  is entitled to occupy by virtue of an interest in it or  by virtue of an order of a court,
(b)  has an express or implied licence to occupy, or
(c)  occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
(2)	A person is also homeless if he has accommodation but -
(a)  he cannot secure entry to it ...
(3)	A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. 
(4)	A person is threatened with homelessness if it is likely that he will become homeless within  28 days."  [my emphasis]

As to sub-section (3), Section 177(2) provides that

"[i]n determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation."

Before continuing, I should give my understanding of the scheme of Section 175. Sub-section (1) defines homelessness by reference to an applicant's lack of accommodation available for his occupation anywhere in the World.   Sub-section (3) defines such accommodation as that which it would be reasonable for him to continue to occupy.  Sub-sections (1) and (3) must, therefore, be read together.  Sub-section (2) provides an additional  definition of homelessness where an applicant has accommodation as described in sub-section (3), hence not rendering him homeless under sub-section (1), but he cannot, for certain practical reasons, use it.

The 1996 Act also introduced, by Section 202,  a procedure for review by a housing authority of the various decisions it is required by Part VII to make in respect of homelessness, including and notably that as to eligibility of an applicant for assistance.  Section 202(3) and (4) require an authority, on a request being made to it within 21 days of the notification of its original decision (or such longer period as it may in writing allow),  to review that decision.  Section 203 and regulations made under it provide for the procedure and powers of the person nominated to conduct the review; see the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996; SI 1996/3122.  And Section 204 contains a right of appeal to the County Court against the review decision.  It provides: 
"(1)	If an applicant who has requested a review under section 202 -
(a)	 is dissatisfied with the decision on the review; or
(b) 	is not notified of the decision on the review within the time prescribed under section 203
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2)	An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(3)	On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit. ..."

The appeal raises four main issues of principle:  first, the breadth of the jurisdiction of the County Court under Section 204 of the Act, giving an applicant for review a right of appeal to the County Court "on any point of law arising from" the decision on the review or the original decision; second, whether, accommodation which it is reasonable for an applicant "to continue to occupy" under Section 175(3) of the Act must be accommodation of a degree of permanence; third, whether in considering the reasonableness of such continuation of occupation, a housing authority must consider whether the applicant can afford to travel to that accommodation; and fourth, whether an applicant is unable "to secure entry to" accommodation under Section 175(2) where he or she cannot afford to travel to it. 

The facts on which these issues fall to be decided were, in summary, as follows.  Nipa Begum is a British citizen aged, at the material time,  21.  She was born in Bangladesh, where she lived until the age of 13 or 14 when she came to live in the United Kingdom with her parents.   At the age of about 17 she married a Bangladeshi during a short stay in Bangladesh, but then returned without him to her family home here.  There followed, when she was 18 or 19, a 12 months' stay with her husband at his father's home in Bangladesh, after which she again returned to the United Kingdom and lived with relatives.  Shortly after her return she gave birth to a son.  She remained here until May of 1997 when she took her son to Bangladesh to spend some time with her husband, again staying with him at his father's home, where they and the child had their own room.  Her husband was unemployed and awaiting the outcome of an application for leave to enter and live in the United Kingdom. Whilst in Bangladesh her son became ill and she returned with him to this country, again going to live with relatives.  In about September 1997, when they told her that she and her son could no longer live with them, she applied to the authority for housing assistance.

The authority, after making enquiries, which included an interview of Nipa Begum, notified her by letter of 15th October 1997 that it was satisfied she was not homeless within the meaning of Section 175 because she had accommodation in Bangladesh which was available for her occupation and which it considered to be reasonable for her to continue to occupy.  She sought a review of that decision, pursuant to Section 202.  Her solicitors made written representations to the authority on her behalf, relying mainly on an assertion that she could not afford to live permanently in Bangladesh.  However, the representations included an acknowledgment that it was Bengali tradition that a married couple would normally live with her husband's family, that she could continue to live with him in his father's house and that his family was supporting him financially.  There was no suggestion that she could not afford air fares to Bangladesh for herself and her son.  

The authority, by letter to Nipa Begum of 27th November 1997, confirmed its original decision that she was not homeless, in particular that she could have continued to live with her husband at his father's house in Bangladesh.  I had better set out the material parts of the letter:

...  It is accepted that your intention in going to Bangladesh on 5th May 1997 was to visit your husband and for a holiday and that you did not intend to stay there.  I note, however, that since you went to Bangladesh in 1993 when you married your husband who has continuously lived in his father's house in Bangladesh, you have spent more time at that property than your accommodation (now no longer available to you) in this country.

It is also accepted that your most recent stay in that property was longer than anticipated. 

It is suggested that because your son fell ill whilst in Bangladesh you could not live there on a permanent basis.  I do not accept this; you were able to see a Doctor and obtain appropriate medicine.

It is also suggested that you could not remain in Bangladesh due to your financial circumstances there.  I note, however, that your husband remains there and is supported by his brother who gives him food and receives money from relatives in this country.  For this reason I do not accept that assertion.

It is accepted that the property you occupied in Bangladesh is owned by your father-in-law and that your husband is only a bare licensee without security as, of course, were you.  I do not accept that because a person had no security of tenure in any accommodation that she/he is homeless.

It is acknowledged by all parties that you were not asked to leave the property in Bangladesh. ....  I note that ... it is Bengali tradition for a married couple to live with the husband's family and under no circumstances would your father-in-law ask you to leave due to cultural beliefs.   Ms Curtis, Nipa Begum's solicitor], however, stated that your father-in-law would not have agreed to you living there permanently.

... I am satisfied that you could have continued to live at the property in question and, further, that the accommodation remains available for your occupation.

Further, I am satisfied that the property is suitable for your needs; indeed, no opposite view has been offered and I am satisfied that it is reasonable for you to occupy the accommodation. ..."

It is against that decision that Nipa Begum, on 16th December 1997, appealed to the County Court, pursuant to Section 204 of the 1996 Act, claiming that the authority had erred in law and had been irrational in determining that she was not homeless, in particular in concluding that it was reasonable for her to continue to occupy her father-in-law's home in Bangladesh. 
  
"Judicial review" in the County Court on appeals under Section 204?

The short question is whether Section 204, in providing for an appeal to the County Court "on any point of law arising from" the review or original decision, gives it a power akin to that of judicial review exercisable in the High Court, including the power to quash a decision on the ground of irrationality. The Judge held that it does; and, as a matter of construction and of policy, I have no doubt that he was right in so holding. 

I deal first  with the construction - as a matter of the plain meaning - of the words in  Section 204, "any point of law arising from the decision".  Lord Diplock in CCSU v. Minister for Civil Service [1985] AC 374, HL, at 410C-411B, analysed the grounds upon which administrative action is subject to control by judicial review under three heads which he called "illegality", "irrationality" and "procedural impropriety".  It is true that he expressly disavowed as "ingenious" Viscount Radcliffe's reasoning in Edwards v. Bairstow [1956] AC 14, HL, at 35-36, that an irrational decision is only explicable on the basis that there must have been an error of law in the decision making process.  However,  I do not consider that Lord Diplock intended thereby to deny the product of the process, the irrational decision, the quality of unlawfulness.

The 7th edition of Wade & Forsyth's Administrative Law, in commenting at page 950 on a suggested "fact and degree" categorization falling short of a decision of law, said that such a category - 
"may be vulnerable to logical analysis in that, once the facts of the case are established, the application to them of some legal definition or test is in its nature a matter of law.  Law and fact are two different things, and a question of law should not become one of fact merely because it is one on which opinions may reasonably differ.  Questions of degree are not 'therefore' questions of fact."

The learned authors, on the next page, go on to urge, and cite reported examples of,  a broad construction of rights of appeal conferred on a point of law: 
"	The courts ought ... to guard against any artificial narrowing of the right of appeal on a point of law, which is clearly intended to be a wide and beneficial remedy.  Very difficult questions of law have to be determined by many tribunals and for the sake of consistency and fairness it is important that the guidance of the courts should be available. ...

The extension in recent years of the right of appeal on questions of law has ... done much to assist the integration of the tribunal system with the general machinery of justice.  Judicial policy ought to reinforce this beneficial trend."

In my view, the law is correctly stated in the commentary to section 204 in the Encyclopaedia of Housing, Vol. 1, paragraph 1-1799/860 and in the note on the section at page 1577 of the current edition of the Green Book.  It is that "a point of law" includes, not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and  questions of vires, to which I add, also of irrationality and (in)adequacy of reasons.  This broad construction of the provision is supported, as the editors of the Encyclopaedia observe, at Vol. 1, paragraphs 1-1799/860 and 1-1799/869,  by the somewhat wider or more immediate power to vary given to the County Court by section 204(3) than the High Court normally exercises in its judicial review jurisdiction. 

It is true that elsewhere in the Act there is provision for an "appeal", not limited to "a point of law", as in section 204, a limitation, suggested Mr Ranjit Bhose for the authority, indicating something narrower than the whole range of  challenge available on judicial review.  An example of this is section 6, providing a right of appeal to an aggrieved body against a decision of the Housing Corporation not to register it as a social landlord or to remove it from the register.   But that right of appeal is to the High Court which, as provided by RSC Order 55, Rule 3(1), is by way of rehearing and, therefore, much wider than the remedy of judicial review.  Further, where the draftsman of the Act in conferring a new jurisdiction on the County Court intended to exclude the exercise by it of any power of review or oversight of the discretion of the administrative body concerned, he made his intention plain.  See, for example, section 127(2), in Part V of the Act, requiring the County Court to make a possession order of a dwelling house let by a local housing authority under an introductory tenancy where the authority had complied with certain provisions; Manchester City Council v. Cochrane, CA, 18th December [1999] 1 WLR 809, CA,(albeit creating something of an anomaly when considered alongside section 204, as observed by Judge LJ at pages 22-3 of the transcript). 

As to policy, the introduction by section 204 of the 1996 Act of the new right of appeal to the County Court in homelessness cases was intended to transfer from the High Court to the County Court the main strain of the High Court's otherwise onerous task of judicial review of those decisions for which section 202 provides.  I say "transfer ... the main strain" of such jurisdiction to the County Court, because the Act does not deprive the High Court of its traditional jurisdiction in such matters.  Such jurisdiction simply becomes residual; that is, it has become normally inappropriate to grant judicial review in them because there is now another, and generally more appropriate, avenue of challenge; see e.g. R v. Epping & Harlow General Commissioners, ex p. Goldstraw [1983] 3 All ER 257,  per Sir John Donaldson MR  at 262, and R v. Chief Constable of Merseyside Police, ex p. Calveley [1986] QB 424, CA.  It cannot have been intended that certain pockets of the High Court's jurisdiction, such as irrationality, should remain its exclusive preserve, thus giving rise to two, often overlapping, modes of challenge to a housing authority's decisions under section 202.  Cf. Chief Adjudication Officer v. Foster [1993] AC 754, HL, per Lord Bridge at 766H-777A.  Moreover, a moment's thought indicates that it is in the area of irrationality that the County Court is every bit as qualified, or better than, the High Court to evaluate the strength or weakness of local decisions under challenge.  It would be absurd if the new Act were construed so as to give the County Court its head on matters of legal interpretation, but not on challenges based on irrationality.    

The possibility of redress by way of judicial review of a decision not to provide temporary accommodation (for which section 202 does not provide a right of review), while pursuing an appeal to the County Court against a substantive decision as to homelessness, considered by this Court in R v. Brighton & Hove DC, ex p. Nacion (Ramon), CA (1st February 1999) is, as the Court indicated, likely to be very rare and should not be taken as a sign of the general acceptability of duplicity of challenges to homelessness decisions under the new statutory regime.  

There is another reason why the draftsman cannot have contemplated two concurrent, either separate or overlapping, forms of challenge to a local housing authority's decision on homelessness - timing.  It is clearly desirable, in the public interest as well as that of applicants, that such challenges are resolved quickly and cheaply (see Honig v. Lewisham LBC (1958) JPL 302); hence the time limit, without power to the County Court to extend it, of 21 days for appeal to the County Court prescribed by section 204(2).  The looser time constraints of RSC Order 53, Rule 4 and the leave threshold in judicial review would frustrate that clear statutory objective if it could be overridden every time there is a complaint of irrationality in addition to, and supposedly distinguishable from, an error of law.  For the same reason and save in the most exceptional circumstances, the residual jurisdiction of the High Court should not be regarded as a back-stop for the appellate jurisdiction of the County Court under section 204 where the applicant for housing assistance has failed to appeal a review decision within the 21 days' time limit.  If there is to be any relaxation of that limit it would be better for Parliament to put it under the control of the County Court.

I am reassured to find that the Court has already expressed, albeit obiter, similar sentiments as to the purpose and function of the new appellate jurisdiction of the County Court in homelessness cases.  In ex p. Nacion (Ramon), as I have mentioned, the Court refused leave to appeal the authority's refusal to provide temporary housing pending an appeal against its finding of intentional homelessness, for which refusal section 202 provided no right of review and section 204(4) gave it a discretion.  Lord Woolf MR commenting generally on the new power of the County Court in matters, such as this, for which section 202 and the appeal provisions of Section 204 do provide, said: 
"	The history of section 204 of the Housing Act 1996 is that, until the Act came into force, applications for judicial review were regularly being made to the High Court where a person who was in need of accommodation sought to obtain the assistance of the courts to prevent local authorities ceasing to accommodate them.  The remedy of judicial review in those circumstances was often not appropriate because High Court proceedings are not the right forum in which to resolve the delicate issues which arise out of local authorities' responsibilities for providing accommodation.

Judicial review was not appropriate because of the need for relief to be provided at extremely short notice, sometimes from applicants in parts of the country a considerable distance away from the High Court in London.  Parliament, therefore, intervened by transferring the general jurisdiction of the High Court to the county court by the provisions of section 204 of the 1996 Act.  That gave the county court a jurisdiction to deal with appeals on any point of law which means that the county court's powers will be similar to those of the High Court on judicial review."   

Whether, under Section 175(3), " accommodation which it would be reasonable for [an applicant] to continue to occupy" requires some degree of permanence

The Judge held that  before a local housing authority could conclude that a person was not homeless by reason of the availability of accommodation which it would be reasonable for him to occupy, as provided in section 175(3), it must be satisfied that the availability of such accommodation had some degree of permanence.  He said, at page 6 of the transcript of his judgment: 
"	Although [counsel for Nipa Begum] declined my invitation to attach any significance to the use by Parliament of the words 'continue to occupy' as opposed to simply 'occupy' in section 175, I remain convinced that the choice [of] words is significant both generally and on the facts of this case.  It implies at the very least a degree of permanence which extends beyond a temporary stay dependent on the charity of friends or relatives, or simply accommodation made available for a holiday.  My conclusion on this point is supported by a passage from paragraph 13.8 of the Code of Guidance
'There is no simple test of reasonableness.  It is for the local authority to make a judgment on the facts of each case ...   Other factors that may be considered are ... (d) type of accommodation: some types of accommodation ... are intended to provide temporary accommodation in a crisis and it should not be regarded as reasonable for someone to continue to occupy such accommodation in the longer term.'"

The Judge's view about this issue was academic since it does not appear to have featured as a reason for his decision when he came to apply his views of the law to the facts of the case.  However, his reference to some degree of permanence as a requisite of the reasonableness of continuing to occupy accommodation under Section 175(3) was plainly wrong.  Neither section 175(3) nor any other provision in Part VII of the Act says anything about permanence.  Indeed, the only relevant guidance of a general kind is that in section 177(2), indicating that regard may be had to the general housing circumstances in the district of the authority considering the application for accommodation.   The same provision (governing both homelessness and intentional homelessness, then in Section 58(2A)  and 60(1) of the Housing Act 1985) was considered by the House of Lords in R v. Brent LBC, ex p. Awua [1996] 1 AC 55, HL.  Lord Hoffmann, with whom the other members of the House agreed, said, at 68A-B: 
"... there is nothing in the Act to say that a local authority cannot take the view that a person can reasonably be expected to continue to occupy accommodation which is temporary.  If, notwithstanding that the accommodation is physically suitable, the occupier's tenure is so precarious that he is likely to have to leave within 28 days, then he will be 'threatened with homelessness' within section 58(4).  But I find it hard to imagine circumstances in which a person who is not threatened with homelessness cannot reasonably be expected to continue to occupy his accommodation simply because it is temporary."

The Judge's reference to the Code - not an authoritative guide to interpretation of the Act - was, in any event, misconceived, because the passage from it, part of which he quoted, was directed more at the inadequacy of the accommodation because of its temporary character than at the time for which the applicant could be expected to occupy it.  Thus, paragraph 13.8(d) gave as examples of "types" of accommodation which might not be regarded as reasonable for someone to continue to occupy "in the longer term", "women's refuges, direct access hostels and night shelters to provide temporary accommodation in a crisis".  That guidance is of a piece with the following distinction made by Lord Hoffmann in ex p. Awua, at 68B-D: 
"	On the other hand, the extent to which the accommodation is physically suitable, so that it would be reasonable for a person to continue to occupy it, must be related to the time for which he has been there and is expected to stay.  A local housing authority could take the view that a family like the Puhlhofers, put into a single cramped and squalid bedroom, can be expected to make do for a temporary period.  On the other hand, there will come a time at which it is no longer reasonable to expect them to continue such accommodation.  At this point they come back within the definition of homelessness in section 58(1)."

On the facts of the case before the Judge there was no question of the accommodation in Nipa Begum's father-in-law's house in Bangladesh being of such an unsuitable nature for long-term occupation by her and her son that it would be unreasonable for her to continue to occupy it.  Indeed, the Judge expressly found to the contrary.  He said, at pages 16-17 of the transcript of his judgment:
"	The decision letter of 15th October and the review letter of 27th November set out the matters which the Respondents have taken into account in arriving at the conclusion that the Appellant was not homeless.  I am satisfied from these documents and from the notes of interview that there was evidence from which the Respondents were entitled to conclude that (a) a room in her father in law's house constituted adequate physical accommodation for the Appellant and her child; and (b) the Appellant would not be required to leave her father in law's house if she returned to live there."

The relevance of the ability of Nipa Begum to finance her return to Bangladesh to the reasonableness of her continuance of occupation of her father-in-law's house there.

Nipa Begum, in the submissions made on her behalf to the authority, contended that it would not be reasonable for her to continue to occupy her father-in-law's property in Bangladesh because, inter alia, she could not afford to live there,  a contention which  the authority rejected.  She did not contend at that stage, or in her notice of appeal or affidavit evidence in support of it the County Court, that she could not afford the  air fare for herself and her son back to Bangladesh.  Indeed, such indication as she gave when interviewed by the authority was that the financial difficulty which she had raised did not include an inability to afford the air fare home.  She said that there was no money available for her there, that she had had to curtail her most recent stay there for want of funds and that she was not at the time of interview in work in this country.  However, when she was invited to comment on the possibility that her application might be rejected because of the availability of the property in Bangladesh, her only observation was that the house did not belong to her husband and to suggest that her father-in-law might ask her to leave.  Her father-in-law was present at the interview. 

It should be remembered too that the decision of the authority under appeal in the County Court was itself a review by the authority under section 202 of the 1996 Act of its earlier decision.  Under the Regulations to which I have referred, that review enabled Nipa Begum to make written representations  and required the authority to consider them. As I have mentioned her solicitors, in making written representations, said nothing about her financial inability to return to Bangladesh.  The point was raised for the first time by her counsel in his submissions to the Judge, pointing to the lack of any evidence before the authority as to her ability to finance such travel.   The Judge found that the authority had wrongly failed, when considering the question of reasonableness under section 175(3), to investigate and/or consider the financial resources of Nipa Begum, including whether she could afford her and her son's return to Bangladesh. 
 
Mr  Bhose submitted that the Judge was wrong to hold that the authority was required to consider, without having been put on inquiry that it was an issue, whether Nipa Begum could afford to travel to accommodation which it would otherwise have been reasonable for her to continue to occupy.    He pointed to the notable change in the law effected by section 175(1) in providing that a person was homeless if he had no accommodation available anywhere in the World which it would be reasonable for him to continue to occupy.  He argued that the proper approach for a local housing authority when considering the reasonableness of continued occupation test in section 175(3) is to assume, unless alerted to the contrary, that the applicant is continuing to occupy the property in question, wherever it is.   To require an authority, in the absence of the issue being raised, to embark on an investigation as to the financial ability of an applicant to travel to the accommodation in question would, he submitted, negate the change in the law effected by section 175(1), since most applicants for assistance under Part VII of the Act are poor, and many, particularly in areas such as this authority, come from abroad and are not ineligible for assistance under the provisions of section 185.  In further submissions he maintained that there was nothing in what Nipa Begum said or in the representations made on her behalf in the course of the authority's inquiries, or in the circumstances, which should reasonably have prompted the authority to inquire into the matter. 

Mr  Sylvester Carrott, for Nipa Begum, submitted, on the other hand, that the essential matter is not whether the applicant has ever occupied the accommodation, notionally or otherwise, but whether as part of the test of reasonableness for her to occupy it, it was accessible to her.   It was sufficient that Nipa Begum had in the past lived at her father-in-law's house in Bangladesh and that her leaving of it had led to her homelessness.  His primary submission was that that accommodation was not available to her because, inter alia, she could not afford to go back to it.  

Mr. John Howell, QC, in further submissions on Nipa Begum's behalf, emphasised the authority's statutory duty under section 184(1) of the 1996 Act to "make such enquiries as are necessary to satisfy themselves" whether she was homeless.  That involved, he submitted, inquiring  into all relevant matters on the issue of homelessness, whether or not they had been raised by or on her behalf. Her ability to pay her and her son's air fares to Bangladesh was, he argued, obviously a relevant matter. He referred to the general and well established principle that a person charged with making a decision must take reasonable steps to acquire the information reasonably required to enable him to make that decision, citing in particular Lord Diplock in Tameside MBC v. Secretary of State [1996] AC 1014, 1065b.  He stressed the importance of the task in homeless person cases where applicants are often under strain, are unlikely to be well versed in what is and what is not relevant to their applications and where they may be both confused and inarticulate.  Here, he submitted, the authority was aware of Nipa Begum's lack of resources, including the fact that she had cut short her most recent stay in Bangladesh for want of money, that she was unemployed and about to claim social security benefits. 
 
He referred to Patterson v. Greenwich LBC (1993) 26 HLR 159, CA, a "local referral" case under what is now section 198 of the 1996 Act, in which the Court held an authority had failed in its duty to make proper inquiries by referring an applicant to her local housing authority without having investigated whether it would expose her to a risk of violence, even though she had not mentioned the possibility.  However,  given that the authority did not enquire of the applicant whether there was any reason why she should not return to her local authority's area and the fact that the statutory provision specifically required an authority to be satisfied that there is no such risk before making a referral order, it is not surprising that the court was of the view that it had failed to make proper inquiries.  The facts are clearly distinguishable from this case where financial ability to travel is not identified in the Act as a specific requirement of an order for homelessness, where it was not an obvious matter for specific inquiry in the circumstance but merely one of several possibilities covered by the authority's  general enquiry of her why she could not live in the Bangladesh property.  

Mr. Howell also mentioned Prest v. Secretary of State for Wales (1983) 81 LGR 193, CA, in which the Court quashed a decision of the Secretary of State  confirming a planning inspector's recommendation of  a compulsory purchase order, because of the inspector's failure to consider a matter, not raised at his inquiry but relevant to an issue which the Secretary of State regarded as decisive, put before the latter after receipt of the inspector's report and before he gave his decision.  That summary is sufficient to distinguish the case from the circumstances here.  The omitted matter was clearly relevant and should have been so regarded by the Secretary of State when it was drawn to his attention before he made the decision under challenge.  In the present case the relevant issue, though even then not any facts in support of  the applicant's reliance on it, was raised for the first time long after the authority's decision under challenge.

The  first point to note is that Section 175 has narrowed the definition of homelessness specifically by broadening the area in which the availability of accommodation takes it outside the definition. By the addition of the words "or elsewhere" in section 175(1) the definition now extends to the non-availability of accommodation world- wide instead of just to England, Wales or Scotland as in the 1985 Act.  Lord Mackay of Ardbrecknish, Minister of State in the Department of Social Security, during the second reading of the Bill in the House of Lords, explained the reason for this narrowing by saying "there is no reason why someone who has voluntarily left accommodation in another country in which he or she could have continued to live should be regarded as homeless for the purposes of domestic United Kingdom legislation" (573 HL Official Report (5th series) col. 405; 19 June 1996).

The second point to note is that section 175(1) refers to availability of accommodation for occupation, not the fact of occupation. Yet the definition of such availability in section 175(3) is that of "accommodation which it would be reasonable for him to continue to occupy" [my emphasis], not that which it would be reasonable for him to return to or go.  In my view, it is plain that Parliament was not using continued occupation in the sense of continuance of an actual occupation at the time of the application, but of continuance stemming from one of the entitlements to occupy specified in section 175(1).  If that were not so, it would make unworkable, for example, the operation of section 177(1), which specifically  provides that it is unreasonable for a person "to continue to occupy" accommodation if it is probable that it would lead to domestic violence against him or her, since most such applications are made after the applicant has ceased to occupy the accommodation in question.  See also section 177(2) and (3) which speak of determination "whether it would be, or would have been, reasonable for a person to continue to occupy accommodation" [my emphasis].  Further, the plain intention of Parliament was to enable a local housing authority to determine the question of homelessness by reference to the test in section 175(3) without having to go on to the corresponding question in the test of intentional homelessness in section 191(1) as a result of cesser of occupation. 

The third point to note is that, as emphasised by Mr. Howell, by section 184(5) of the 1996 Act, the authority had a duty "... to make such inquiries as ... [were] necessary to satisfy themselves" whether Nipa Begum was eligible for assistance and, if so, what duty they owed to her under Part VII of the Act.  The exercise is one of inquiry, not of adjudication of issues raised by the parties.  And, as Neill LJ said, in R v. Royal Borough of Kensington & Chelsea, ex p. Bayani (1990) 22 HLR 406, at 409, although the scope and scale of the inquiries is primarily a matter for the authority. the inquiries must be those which are "necessary" to enable it to make a decision.  The possibilities are many and various and their necessity in any particular case will depend on the circumstances of and surrounding the application as known to the authority.  If  an authority makes the necessary and appropriate inquiries in the circumstances from which it could reasonably have concluded that an applicant is not homeless the court will not intervene. 

The practical outcome of all this may not always be easy to resolve.  Clearly, financial inability to travel to accommodation which it would otherwise be reasonable for an applicant to "(continue to") occupy makes the accommodation unreasonable for the purpose.  If an applicant can't go to a property how can it be regarded as reasonable for him or her to occupy it?  On the other hand, unless the point is mentioned by or on behalf of an applicant in the course of an authority's inquiry, or it is indicated as a likely possibility by the circumstances or from what he or she says,  I do not consider that the authority's duty requires it to investigate the matter. Financial inability to travel is only one of many possible reasons why it may not be reasonable for an applicant to return to occupy overseas accommodation. In addition to factors concerning the legal availability, suitability and affordability of  the  accommodation, others may be, for example, connected with family or other personal problems, ill-health, immigration restrictions, physical security and many others.  In the absence of an indication of a particular difficulty or difficulties of that sort it is not, in my view, an authority's duty to take an applicant through a check-list to negative all possible obstacles to his or her return to the overseas property.

Certainly, housing authorities should not be required routinely to investigate and satisfy themselves of an applicant's financial ability to return to accommodation otherwise available abroad when the applicant's account or the circumstances of the case do not put them on inquiry on the matter.  However, when they are alerted to it, they should investigate and consider it with care, bearing in mind the importance to the applicant of having somewhere to live and to the authority of fair allocation of limited public resources.

Here, the Authority inquired into, but rejected, Nipa Begum's claim's that it would be unreasonable for her to return to live with her husband at her father-in-law's house in Bangladesh because she could not afford to live there and would have no security of tenure.  Making all due allowances for her vulnerability and unfamiliarity with the procedure, my view is that had financial inability to travel been a difficulty, it would have been an obvious matter for her to mention in the part of her interview to which I have referred when the interviewing officer asked her to comment on the possibility of a finding that she was not homeless.  It was effectively an invitation to her give any other reasons, in addition to those she had already given, for her inability to return to live in Bangladesh.  Given her close family connections and support in this country and in Bangladesh and her seemingly ready ability to make three return journeys in the previous few years, during most of which period she had also been unemployed, I do not consider that the authority could reasonably have been under a duty to ask her whether she could afford the air fare. 	

The relevance of Nipa Begum's ability to finance her return to Bangladesh  to her ability, under Section 175(2)(a), to "secure entry"her father-in-law's home there

The Judge also held that a person who has accommodation but does not have the financial means to return to it is unable, in the words of section 175(2)(a), to "secure entry to it" and is, therefore, homeless, regardless of the test of reasonableness of continued occupation in section 175(3).  He said that: 

"[a] person who does not have the means to arrive at the specified accommodation is just as much unable to gain entry to that accommodation as if it were occupied by squatters.".

I agree with Mr Bhose that this is a misconstruction of section 175(2).  The provision is clearly aimed at and limited to those cases where an applicant has accommodation satisfying the requirements of section 175(1) and (3), namely which he is entitled to occupy and it is reasonable for him to continue to do so, but for some practical reason, such as illegal eviction or the presence of squatters,  he is physically unable to "enter".  The condition is aimed at a physical bar at the premises themselves, not some difficulty, for whatever reason, of travelling to them.   The Judge's additional reliance on this provision cannot, in any event, stand with his ruling that it was also relevant to the test of reasonableness under section 175(3).  As I have indicated, the scheme of the section is  that a person is homeless if he "has" no accommodation which he is entitled to ("continue to") occupy as defined in section 175(1) and (3).  He is "also" homeless if, although he "has" accommodation satisfying both those provisions, "he cannot secure entry to it" under section 175(2).   The Judge's view that financial inability to travel to accommodation made it unreasonable for Nipa Begum's continued occupation under section 175(3), if correct, meant that she did not have accommodation under section 175(2) to which its condition of inability to secure entry could apply.

In addition to those four matters of principle, on the first of which I have held the Judge was correct and on the other three of which I have held him to have been in error, the authority challenges his conclusion in two other respects. 

The absence of evidence whether, as a matter of the law of Bangladesh, Nipa Begum was entitled to return to live there

Nipa Begum did not raise as an issue in her application to the authority or on its review of its original decision her entitlement, or lack of it, under the law of Bangladesh, to return to live there.   Indeed, when asked in interview if it would have been possible for her to remain in her father-in-law's house in Bangladesh, she said that she could have done so, but did not want to for three reasons, namely financial, her son's schooling and his illness while there.  Had she raised the issue then or later, it could have been highly material to the authority's decision; see R v. LB Hillingdon, ex p. Wilson (1984) 12 HLR 63, QBD.  Nor did Nipa Begum raise the issue in her request for entry of the appeal to the County Court or through her counsel in his skeleton argument for the hearing of that appeal.  In consequence, the authority did not deal with it in the evidence that it put before the Judge in support of its decision. 

The matter first arose, though seemingly not as an issue, in the course of submissions in the appeal when counsel for the authority, on instructions from one of its experienced officers, observed that British citizens could lawfully enter and remain in Bangladesh for up to two years.  Nipa Begum's counsel did not object to that information being given to the Judge, though he did not positively concede the point.  And the Judge did not indicate that he would not accept its accuracy  without appropriate supporting evidence.  Only in his judgment, did he indicate his rejection of counsel's submission on the matter and his reliance on the lack of any supporting evidence of it as a further basis for holding, under section 175(3), that it would not be reasonable for Nipa Begum to continue to live at her father-in-law's home in Bangladesh.  He said, at pages 6-7 of the transcript of his judgment:
"	Furthermore in terms of accommodation outside the United Kingdom the local authority are obliged in my judgment as a matter of law to consider not just the nature of the occupation from the point of view of continuity, but also in terms of the legality of the Appellant's occupation as a person who may have very limited rights to remain living there under the immigration laws of the country in which the accommodation is situated.  

In this case what is known is that the Appellant is a British citizen.  She had just returned from a period on holiday in Bangladesh when her accommodation in England ceased to be available to her.  There is no evidence that either in the original decision or the review the officer has addressed his mind at all to the question whether it would be lawful for the Appellant to return to Bangladesh after such a short interval and if so for how long?

In my judgment where accommodation is said to be available to a British citizen outside the United Kingdom there must be some evidence that the Appellant will be permitted to continue to occupy that accommodation under the immigration laws of the country where the accommodation is situated.

Some information was offered to me by Counsel for the Respondents indicating that British citizens may freely enter Bangladesh and remain there for up to two years.  I say no more about that because neither I nor the Appellant has any means of verifying the truth of that assertion, whether it may be subject to conditions for example as to the financial status of the person seeking to enter, or whether there has to be any minimum period between visits.  More importantly it is common ground that this appeal falls to be determined on the evidence available at the time of the review and not on any subsequent information

In the absence of that information the conclusion that this Appellant could continue to occupy accommodation in Bangladesh is clearly irrational and must be quashed."  

In my judgment, the Judge was wrong, in the circumstances, to impose a burden of inquiry on the authority, and to regard as irrational its failure to inquire, as to the entitlement of Nipa Begum under the law of Bangladesh to live there, since, as I have said, she had not raised it as a potential issue going to the reasonableness of her continued occupation of her father-in-law's house there.  As I have said, the authority's duty, under section 184 of the Act. is to make such enquiries as are necessary to satisfy itself whether an applicant is eligible for, and if so what, assistance.  Whilst such enquiries should cover all the factors relevant to questions of eligibility, the test is one of reasonableness having regard to the information provided to the authority by the applicant.  It cannot be reasonable to require an authority to make detailed enquiries about his or her immigration status in the country where, as here, all the information provided to it indicates that it is not, and is not likely to be, a problem.  See, for example, the reasonableness of lack of inquiry where no information suggesting the need for it is given to the authority, R v. London Borough of Wandsworth, ex p. Henderson (1986) 18 HLR 522, QBD; R v. Wycombe DC, ex p. Mahsood (1988) 20 HLR 683, QBD and R v. Sedgemoor DC, ex p. McCarthy (1996) 28 HLR 608, QBD.  Nor was it appropriate for the Judge to take the point in the way and at the time he did, following an appeal hearing when Nipa Begum had not sought to rely on the point or to challenge counsel for the authority's assertion on instructions that her immigration status in Bangladesh could not have been a material factor in the authority's consideration of the reasonableness test in section 175(3). 

The Judge's conclusion on other grounds that the authority's decision was irrational

The Judge began his consideration of other matters on which the authority had relied in its review decision by saying, at page 7 of the transcript:
"	I turn ... to the question of whether it would be reasonable for the Appellant to continue to occupy accommodation in Bangladesh."

He then went on to find that the authority did not appear to have considered a number of matters which, in his judgment, were highly relevant to the issue whether it would be reasonable for Nipa Begum to continue to occupy that accommodation.  These were: whether she could finance her return to Bangladesh, a matter that I have held, in the circumstances of the case, to be irrelevant to such an issue; whether she could afford to live in Bangladesh, a matter that the authority did consider on the evidence put before them, as its review decision letter made plain; that, as a factor to be balanced against Nipa Begum's prospects of securing employment in Bangladesh, she was in regular employment in this country till her departure in May 1997 - in fact, her information to the authority was that she had been in work here only until August 1996; and the fact that she is a British citizen who has made her home in England since 1993.  On those matters, including others to which I have earlier referred, the Judge concluded, at page 18 of the transcript:
"	For all those reasons I find that the decision that this Appellant had accommodation which it was reasonable for her to continue to occupy was both unlawful by reason of failure to take account of highly relevant considerations and irrational in the sense that upon the evidence available the decision that it was reasonable for the Appellant to return to Bangladesh was perverse."

Quite apart from the Judge's errors of law to which I have referred in treating as relevant to his consideration of this issue matters that were not relevant, his approach to the task of determining irrationality on the depleted list of matters properly available to him was, in my view, flawed.  He appears to have regarded it more as an exercise in determining for himself whether it was reasonable for Nipa Begum to remain in her father-in-law's house in Bangladesh than whether in the Puhlhofer sense a reasonable authority, having made the enquiries that this authority did, could have been so satisfied; see R v. RB of Kensington & Chelsea, ex p. Bayani (1990) 22 HLR 406, CA.  In his own analysis of the evidence available to the authority the Judge appears to have left much out of account.  In particular, he appears to have paid little, if any, heed to the shortage of accommodation in the district, a factor which section 177(2) of the Act specifically identifies as a relevant consideration for this purpose, and is included in the following information considered by the reviewing officer as summarised in his affirmation put before him: 
"6.	I considered all the material placed before me.  In particular I had regard to the representations made on behalf of the Appellant by both her solicitors and Ms Hussain of the Tower Hamlets Homeless Families Campaign.  I had regard also to the relevant legislation on homelessness and to guidance published under it.  Thirdly, I had regard to the general circumstances prevailing in relation to housing in Tower Hamlets, in particular to the fact that there is a chronic shortage of accommodation within the Borough. ..."

Whilst, of course, primacy must be given to the terms of the decision letter itself (see R v. Westminster City Council, ex p. Ermakov [1996] 2 All ER 302, CA), the reviewing officer's account of having had regard to this factor as well is of a piece with it.

I accept that among the relevant considerations  for the Judge was whether Nipa Begum could afford to live with her son at her father-in-law's house in Bangladesh.  However, it is plain from the officer's account and from the decision letter itself that the authority did not accept that she could not afford to live in Bangladesh.  It is also plain that the authority had in mind, notwithstanding her British citizenship (arguably a discriminatory and irrelevant consideration in this context), her strong links, including that with her husband, with Bangladesh in which she had lived for substantial periods after coming to this county in at the age of 13 or 14.  In the light of the information Nipa Begum provided to the authority and the representations made on her behalf, I do not consider it unreasonable that it did not make detailed enquiries in Bangladesh as to her financial arrangements and employment prospects there.  Now that there is symmetry between the tests of homelessness and intentional homelessness (see per Lord Hoffmann in ex p. Awua, at 67E-68A), and as to world-wide considerations that may be relevant, authorities indicating the reasonable limits to a local housing authority's duties to make enquiries overseas in cases of intentional homelessness are in point; see e.g. R v. RB Kensington & Chelsea, ex p. Cunha (1988) 21 HLR 16, QBD; R v. Nottingham CC, ex p. Costello (1989) 21 HLR 301, QBD.  Even if another reviewing officer could have approached the matter differently or have reached a different decision, that is a long way from saying that the authority did not make enquiries which no reasonable authority could have failed to make or that its decision in the light of the enquiries it did make was perverse - the test the Judge should have had firmly in mind. 

Accordingly, I would allow this appeal, quash the Judge's order and confirm the  authority's decision on review.

____________________________

LORD JUSTICE SEDLEY:

            At the conclusion of the initial hearing before Auld LJ and myself I was minded to dismiss the appeal on a single and relatively narrow ground: that while the County Court judge was in error in all the other respects identified by Auld LJ, he was right in his conclusion that the local authority had erred in law in failing to consider whether the accommodation in Bangladesh was accessible to the respondent and therefore available to her within the meaning of the Act. Having heard this question more fully argued in a reconstituted court of three judges I now agree – for reasons to which I will come – that on the present evidence the duty of inquiry was fulfilled.

                But although Auld LJ and I agree on the important proposition that availability of accommodation includes accessibility and on much else, both our starting points and our readings of the Act differ in ways significant enough to make it appropriate that I should set out my own understanding of the legislative scheme.

The law

At the base of this appeal is the relationship between subsections (1), (2) and (3) of section 175.  At first sight, subsections (2) and (3) appear simply to amplify the meaning of “has no accommodation” in subsection (1).  On this view, the three subsections together, in paraphrase, appear to define homelessness as meaning having no accommodation, and having no accommodation as meaning
(i)	having no right or power of occupancy known to the law;
(ii)	having such a right or power but being unable to gain entry;

(iii)	having no accommodation which it would be reasonable to continue to occupy.
But two problems immediately become apparent.  First, subsections (1) and (2) are respectively descriptions of what is and is not to be regarded as having accommodation, while subsection (3) qualifies what is accommodation.  Secondly, and more importantly, subsection (3) has a visibly limited ambit: by speaking of accommodation which it would be reasonable to continue to occupy it applies only to accommodation which the applicant already possesses.  What, one asks, is the purpose of treating such accommodation as unacceptable but not identical accommodation in which, although it is equally available for the applicant’s occupation, the applicant has not so far lived?  The problem is compounded by section 197 which, in short, limits the local authority’s duty to an applicant to the provision of advice and assistance if they are satisfied that “other suitable accommodation is available for occupation by him in their district”.    Why, one asks, only if it is in their district?

On behalf of the local authority, Mr. Bhose is driven to submit that the effect of these provisions is to make a person eligible for Part VII housing notwithstanding that they have accommodation available, so long as it is not accommodation which they have previously occupied (section 175(3)) and so long as it is not located in the district of the local authority to which application is made (section 197).  Such an effect would be capricious: it would leave a local authority under an obligation to house a person who has accommodation outside its area which is readily available within the meaning of section 175(1) and (2), but which – because he has not previously lived in it – he is not to be treated as having.  (It is clear from the phraseology of section 175 that no distinction is made by the drafter between having accommodation available and having accommodation.)

The explanation of section 175(3) is to be found in its history, to which, although this is in its material respects a consolidating statute, the problem of interpretation outlined above makes it legitimate to refer:  see Farrell v. Alexander [1977] AC 59, 73, 83.  By section 1 of the Housing (Homeless Persons) Act 1977 – the original legislation – homelessness was defined simply as having no accommodation.  In consequence the House of Lords in Puhlhofer v. Hillingdon LBC [1986] AC 484 held that someone with a roof over their head, however overcrowded and degraded the state of the accommodation, had no claim to be housed under the Act provided the word accommodation was capable of being applied to it.  The original formula had meanwhile been re-enacted in the Housing Act 1985, section 58; but  concern about the effect of their Lordships’ decision led Parliament swiftly to amend the law, using the Housing and Planning Act 1986, section 14(2), to add as subsection 58(2A) of the Housing Act 1985 the same words as now appear in section 175(3) of the 1996 Act.  This is why the reference is to accommodation which it would be reasonable to continue to occupy:  see R. v. Brent B.C., ex parte Awua [1996] 1 AC 55, 67 per Lord Hoffmann.  It explains why S.175(3) stands apart from S.175(1) and (2) and why I conclude (in respectful disagreement with Auld LJ.) they cannot be read together.  

The upshot, in paraphrase, is that a person who has accommodation which nevertheless it would not be reasonable for him to occupy is to be regarded as having no accommodation.  It does not mean that an applicant who has accommodation available to him is (unless it happens to be in the respondent authority’s own district) entitled to have it disregarded if he has not previously lived there.  Indeed it is surprising to hear the latter construction advanced on behalf of a local authority.   I do not suppose that Tower Hamlets or any other local authority with housing functions will be sorry to learn that it is wrong.  

It follows, straightforwardly, that a person who has accommodation which is legally and practically available for their occupation anywhere in the world cannot present as homeless, unless it is accommodation in which they are living but cannot reasonably continue to live.  This still leaves two questions unanswered.  The first, which does not affect this appeal, is what happens where unfit accommodation is available in which the applicant has not previously lived: does Puhlhofer  continue to apply so as to force them to go into occupation, only to be rescued by section 175(3)?  In my view no responsible local authority would ever contemplate testing the point, and the issue can properly be regarded as unreal.

The other question is at the heart of this appeal: what is the meaning of availability for the purpose of section 175(1)?  Is it limited to the statutory criteria of a legal entitlement to occupancy and physical feasibility of entry?  Or does availability logically and necessarily involve accessibility?

Before turning to this and the other issues in the appeal, it is relevant to point out that section 177(2), which permits regard to be had to general housing conditions in the local authority’s district in determining “whether it would be, or would have been, reasonable for a person to continue to occupy accommodation”, governs a number of provisions in Part VII.  One is section 175(3); but this does not explain the use of the past conditional tense (“would have been”), since only the future conditional (“would be”) features in section 175(3).  Other provisions, however, do look to the past, most notably section 191(1) which defines intentional homelessness:

“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy” (emphasis added).

What is said later in this judgment about availability under section 175 will have a bearing, though not necessarily a direct bearing, on this provision too.

The appeal

On the first main issue in this appeal, the breadth of the County Court’s jurisdiction under section 204 of the Act, I agree with everything said by Auld LJ. and therefore with the conclusion of the judge.  The jurisdiction of the County Court is at least as wide as that of a court of judicial review.

I agree, too, that permanence is not a criterion of the reasonableness of continued occupation under section 175(3); although, for reasons which I have explained, I do not think this material to the outcome of the case.  

I agree with Auld LJ. that ability to secure entry to accommodation for the purposes of section 175(2) has nothing to do with the applicant’s ability to reach the accommodation.  It is designed to deal with people whose homes have been occupied by squatters or otherwise become physically barred to them.  I accept Mr. Carrott’s analysis that the question of accessibility arises, if at all, as an aspect of availability under section 175(1).  For the reasons I have given, section 175(3) is relevant only to a person whose application is made from extant accommodation: in that event, but only then, does the reasonableness of continued occupation arise.  Unlike Auld LJ, I see no discontinuity between this reading and the provision of section 177(1) that it is not reasonable to continue to occupy accommodation if it is probable that domestic violence will ensue. The predicate of the provision is precisely that the applicant is housed in such a situation: if she is not, then she risks being treated as intentionally homeless under section 191 if "it would have been reasonable” for her to stay where she was – and this is why section 177(2) makes domestic violence determinative of reasonableness in relation both to present accommodation (section 175(3)) and past accommodation (section 191(1)).  The same explains the language of section 177(3).    

Auld LJ has set out, and I adopt with gratitude, the relevant history of this case.  It is important to observe that it has at no stage been treated, or been able to be treated, as a case of intentional homelessness under section 191.  The impending loss of accommodation which caused Nipa Begum to apply to the local authority was brought about by her relatives in this country, not by her.  

It is evident that the legal availability of accommodation to which, however, the applicant has no access is not intended to negative homelessness.  This is spelt out for certain practical purposes by subsections (2) and (3) of section 175; but there is nothing to indicate that these are intended to be exhaustive or, therefore, that accessibility is to be regarded as an irrelevance.  Even before the enlargement of the ambit of availability in section 175(1) to include the entire world, questions of this sort were capable of arising.  Not only might a person who had come, say, to the Scilly Isles from a home in the Shetland Isles in search of work be both homeless and unable to afford to travel back north; a person might have a home legally and physically available in a part of Great Britain from which they were banned under the Prevention of Terrorism legislation.  Counsel have not been able to show us any authority on the pre-1996 legislation which addresses this issue.  The enlargement of availability to the entire globe by section 175(1) of the 1996 Act does not therefore introduce this problem; it does, however, make it potentially more frequent and more acute.  

The problem can usefully be examined by two examples which draw in the effects of section 175(3) and section 191(1).  Both assume an applicant to a London borough for Part VII accommodation who, it emerges, has a life interest (which she cannot therefore sell) in a vacant house in Australia.  

Case One:	Because of an offence which she has committed in Australia, the applicant is now a prohibited immigrant.  She was living in the house, however, until she came to Britain.  She applied to the local authority for housing immediately on reaching London.  Is the house in Australia accommodation which it would be reasonable for her to continue to occupy for the purposes of section 175(3)? How can it be reasonable when it is impossible?  By the same token, to say that she “has accommodation” for the purposes of section 175(1) is fanciful.  Nevertheless, the applicant may be intentionally homeless under section 191(1) if she has deliberately done something in consequence of which she has ceased to occupy accommodation which is available for her occupation and which it would have been reasonable for her to continue to occupy.  This approach has the advantage of extending the symmetry noted by Lord Hoffmann in R. v. Brent L.B.C., ex parte Awua [1996] 1 AC 55, 67, between the two predecessor subsections.  

Case Two:  The applicant has never lived in the house in Australia.  She has come voluntarily to England.  This does not entitle her without more to be treated as homeless, as it would if section 175(3) were integral to section 175(1).  The fallacy of Mr. Bhose’s construction is that it treats alike those who can and those who cannot make use of accommodation which is available to them and regards both of them as homeless.  But in my view the legal reality, corresponding with the practical reality, is that the applicant is to be treated as homeless if, but only if, she cannot get to Australia.  If she were a prohibited immigrant, she plainly could not do so. But as a voluntary migrant, her ability to reach Australia is a matter for inquiry and decision by the local authority.  On it will depend the answer to the question whether the accommodation there is available to her.  To hold that it is available to her because it is legally and physically hers to occupy, without regard to the question of whether she has any way of getting there, is not only to take leave of reality: it is to drain the word “available” of meaning.  

It is in this last respect, and it alone, that I was initially minded to hold that the local authority erred.  Although it carefully considered the question of availability in the light of legal accessibility – that is to say, in the light of Bangladeshi immigration law and practice – it failed to give any consideration to practical accessibility – that is to say, to whether Nipa Begum could get back to Bangladesh with her small son.  For the reasons I have given, the latter, like the former, was a relevant legal consideration:  both related to the availability of the accommodation in Bangladesh.  It is exactly why the local authority was right to consider Nipa Begum’s immigration status there, whereas on Mr. Bhose’s construction, this too should have been disregarded as irrelevant.

This brings me to the two final issues: was the local authority wrong, as Mr. Carrott submits it was, to make use of its information about Bangladeshi immigration law and policy without putting the applicant on notice; and did it fail, as Mr. Carrott and Mr Howell have submitted it did, to consider Nipa Begum’s ability to reach Bangladesh?

Section 184(1) spells out the local authority’s general duty of inquiry in these cases:

“If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –
(a)		whether he is eligible for assistance, and 
(b)	if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.”

Mr Howell in a well-focused submission has drawn our attention to two relevant decisions of this court. One is Prest v Secretary of State for Wales (1982) 81 LGR 193, a statutory application to quash a planning decision taken after an inquiry where a relevant issue had simply not been canvassed. Holding that a statutory public inquiry must not be treated as if it were a lis inter partes, Lord Denning MR said:

“It is a public inquiry – at which the acquiring authority and the objectors are present and put forward their cases – but there is an unseen party who is vitally interested and is not represented. It is the public at large. It is the duty of the Secretary of State to have regard to the public interest.”

This he must do, Lord Denning said – citing Lord Diplock’s words in the Tameside case [1977] AC 1014 - by asking himself the right question and taking reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. Accordingly, said Watkins LJ,

“What [the inspector] may not do is to proceed to exercise his discretion and allow it to be swayed by a factor which is inadequately presented to him?. He conducts a process of administrative decision which is quite unlike that conducted by courts?.”

Mr Howell submits that what is true of the inspector’s duty to guard the public interest is equally true of the homelessness officer’s duty to guard the applicant’s interests.  In Patterson v London Borough of Greenwich (1993) 26 HLR 159 this court held that the local authority’s omission to ascertain whether the applicant would face a risk of domestic violence if referred to another district with which she had a connection – a question posed by s.67(2)(c ) of the Housing Act 1985 (now s. 198(2)(c ) of the 1996 Act) – vitiated its decision without more. Accepting that the scope of inquiry was primarily a matter for the local authority (R v Royal Borough of Kensington and Chelsea, ex parte Bayani (1990) 22 HLR 406), the court nevertheless held that the failure to ask the material question constituted an error of law.

              I have no difficulty in accepting all Mr Howell’s submissions thus far. Mr Bhose, rightly, did not contest them. In relation to the s.184(1) duty one can legitimately add to Mr Howell’s ground, that Parliament will have been thinking of applicants who are likely to be distressed and may well be inarticulate, the further ground that it will equally have been concerned that public resources should be carefully used. Both point to a requirement no less stringent than in the case of a public planning inquiry that the local authority must take the applicant carefully through all the factors capable of bearing on the application. Put another way, s. 184(1) creates a public duty, not a private right. Moreover, since it is a duty affecting one of the most important things in people’s lives, the roof over their heads, it is one about which the courts ought to be vigilant. And an inquiry in this context is a two-way process: the authority must put to the applicant relevant information which it already has, for as Lord Loreburn LC said in Board of Education v Rice [1911] AC, listening fairly to both sides “is a duty lying upon everyone who decides anything”.

            I turn in this light to the two factual issues in relation to which Mr Carrott has sought to impugn Tower Hamlets’ decision to refuse his client Part VII housing.

The officers of a local authority who take and review homelessness decisions are bound over time to build up a stock of relevant information, not all of which will be known to applicants. For the reasons I have given, the legal possibility of a woman in Nipa Begum’s situation taking up residence in Bangladesh was a relevant matter of inquiry.  If there had been any potential issue about it, it would have been wrong of the officer concerned not to give Nipa Begum an opportunity to say whether the legal situation was as the officer believed it to be.  But in the present case the matter had been briefly but conclusively canvassed with her.  The notes of interview record:

“I asked if it would have been possible for her to remain at this home in Bangladesh, she said she could have but did not want to ?”

But for this, it would not have been fair or therefore lawful for the local authority to make use of privately acquired information relevant to the determination of Nipa Begum’s Part VII application without canvassing it with her.  

The other factual issue was whether Nipa Begum could reasonably be expected to get herself and her son back to Bangladesh.  Like Auld LJ, I reject the submission that the issue was irrelevant.  But it does not follow that in every homelessness case where alternative accommodation is otherwise available the local authority has to satisfy itself affirmatively that the applicant can get there.  In many, perhaps the majority, of cases accessibility is not a self-evident problem. Inquiry into it in such cases will be called for only if the applicant himself or herself raises it.  But with the enlargement of the ambit of available accommodation to the entire world in the recast section 175(1), the 1996 Act is going inevitably to throw up cases in which the problem is obvious, and a good many others where it is wise to ask about it.  My Australian example is one instance of the former; Nipa Begum’s case is in my judgment another.  If this happens – that is, if it is or becomes evident that accessibility could be a problem - the local authority is required by statute to investigate it. Exactly the same is the case where the applicant raises the point. The officer must find out what he or she reasonably can about it and reach a rational conclusion. The question I have found most troubling in this case is whether that happened here.

            First of all, there is no reference whatever in the decision letter to the applicant’s ability, with her son, to reach Bangladesh. Mr.Bhose has sought to place reliance on the affirmation of the reviewing officer as to his reasoning.  None of it in fact relates to this aspect of accessibility, but on principle it ought not in my view to be admitted.  This court made it clear in R. v. Westminster City Council, ex parte Ermakov [1996] 2 AllER 302 that the reasons for the decision must come from the decision letter itself: see section 184(3).  Affidavit evidence may, of course, be admissible where an issue arises about the procedure which was followed; but it is not a legitimate means of amplifying a decision which the law requires to be given in the first place with reasons.  

But in Patterson v  London Borough of Greenwich Evans LJ (at 164), having established the obligation of full inquiry, added:

“At the same time, it cannot be said that there is a statutory duty to ask the precise question in any particular terms. It may well be that sufficient is said in the course of an interview to provide grounds for an affirmative decision ?. even though the direct question was not asked.”

The interview notes show that the applicant told the homelessness officer, among other things, that she had been back to Bangladesh three times since 1990 when she first came to the United Kingdom, most recently from May to August 1997. The officer was also told that there was no money available in her family there and that she was without work here. The notes continue:

“I advised that it is possible the council may decide she is not homeless as this property [in Bangladesh] is available to her, and the council may after consideration of the reasons she gives believe the property is reasonable to occupy.

I asked what her comments would be if the council came to this conclusion, she said the house did not belong to her husband, and what would we say if her father-in-law asked them to leave?”

Although with hesitation, I am not prepared to dissent from the view of the other members of the court that coming as it did in the context of the availablility of the house in Bangladesh this question gave Nipa Begum the opportunity to which she was entitled to say – if it was the case – that she had no means of getting there. Although this does not cure the want of any consideration of accessibility in the decision letter, it means that there was cogent evidence from the applicant herself of a continuing ability to travel between Britain and Bangladesh and no suggestion that, however straitened her own financial circumstances currently were, such travel was no longer possible; so that only one conclusion – that the house was still accessible – was realistically open.

              I do not conceal my unease at filling in this way a gap which in law ought not to be there and which could so easily have been filled by a simple question. The present decision depends on the particularity of the contents of Nipa Begum’s interview. Local authorities must not now imagine that they can safely omit inquiries about the accessibility of alternative accommodation where this is a potential problem, or that the courts will rescue them if they do.

             I therefore agree that this appeal should be allowed.

LORD JUSTICE STUART-SMITH:

1.	This appeal was originally argued before two Lords Justices, namely Auld and Sedley LJJ.  Because it appeared that they might disagree on one issue, namely whether sufficient inquiry had been made by the local authority pursuant to s.184(1) of the Housing Act 1996, as to whether accommodation in Bangladesh was or was not available to her because she could not afford to go there with her son, the case was relisted before a three judge court.  The argument was on that occasion limited to this issue, because I indicated to counsel that I had discussed the case with my brethren and agreed with their conclusions on the other issues.

2.	In the result I agree with both my Lords that the appeal should be allowed, and I do not wish to add anything to the reasons given by Auld LJ on the point on which further argument was heard.

With regard to the different analysis of s.175(1)(2) and (3) of the 1996 Act, given in my Lords’ judgment, it seems to me that Sedley LJ’s analysis is correct; but in my view it makes no practical difference because, as he points out, no responsible authority would be likely to take the point that an applicant is homeless where the accommodation available is not reasonable for them to occupy, but it is not accommodation currently occupied.  In the result it seems to me that the approach of the local authority should be to consider whether the accommodation is reasonable for the applicant to occupy, even if he has not previously occupied it.   

Order:  Appeal allowed with costs.