COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE TURNER
London, WC2A 2LL
Thursday 26th April 2001
B e f o r e :
LORD JUSTICE SEDLEY
MR. JUSTICE BLACKBURNE
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Crown Copyright ©
LORD JUSTICE SCHIEMANN :
This is the judgment of the Court
"Where a Housing Authority are satisfied that an applicant has priority need and are not satisfied that he is homeless intentionally, they shall .... secure that accommodation becomes available for his occupation."
The Statutory Background
The Housing Act 1985
s.22: "A local housing authority shall secure that in the selection of their tenants a reasonable preference is given to -
(a) persons occupying unsanitary or overcrowded houses,
(b) persons having large families,
(c) persons living under unsatisfactory housing conditions, and
(d) persons towards whom the authority are subject to a duty under section 65 or 68 (persons found to be homeless).
Part III of the Act re-enacted the provisions which had been contained in the 1977 Act in relation to the duties owed to the homeless.
S.65(2): "Where they [i.e. a local housing authority] are satisfied that [an applicant] has priority need and are not satisfied that he is homeless intentionally, they shall .... secure that accommodation becomes available for his occupation."
S 69(1): "A local housing authority may perform any duty under section 65 to secure that accommodation becomes available for the occupation of a person -
a) by making available suitable accommodation held by them under Part II or under any other enactment,
b) by securing that he obtains suitable accommodation from some other person, or
c) by giving him such advice and assistance as will secure that he obtains suitable accommodation from some other person."
The Housing Act 1996
Part III of the 1985 Act was repealed except in relation to an applicant (such as those with whom we are concerned) whose application for accommodation was made before 20 January 1997. Part VII contains the current homelessness provisions.
S193: "(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2)... the authority..... shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years ("the minimum period") ......
S.194: (1) Where a local housing authority have been subject to the duty under section 193 in relation to a person until the end of minimum period, they may continue to secure that accommodation is available for his occupation.
(2) They shall not do so unless they are satisfied on a review under this section that -a) he has a priority need,b) there is no other suitable accommodation available for occupation by him in their district, andc) he wishes the authority to continue securing that accommodation is available for his occupation;and they shall not continue to do so for more than two years at a time unless they are satisfied on a further review under this section as to those matters."
Those provisions came into force on 20 January 1997.
"Under the existing legislation, and the way it has been applied until now, a person who is owed a duty under the homelessness legislation has generally been re-housed in long term accommodation in a little over half the time in which someone who is on the housing list had to wait. The purpose of the reforms is to ensure that the claims of every person who is seeking social housing are given proper consideration on a comparable basis "
S.159(1): "A local housing authority shall comply with the provisions of this Part in allocating housing accommodation".
S.161(1): "A local housing authority shall allocate housing accommodation only to persons ("qualifying persons") who are qualified to be allocated housing accommodation by that authority".
S.162(1): "Every local housing authority shall establish and maintain a register of qualifying persons (their "housing register").
S. 163(1): "A persons shall be put on a local housing authority's housing register if he applies to be put on and it appears to the authority that he is a qualifying person".
S.167(1): "(1) Every local housing authority shall have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to -
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,
(b) persons occupying housing accommodation which is temporary or occupied on insecure terms,
(c) families with dependant children,
(d) households consisting of or including someone who is expecting a child,
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation."
(3) The Secretary of State may by regulations -(a) specify further descriptions of people to whom preference is to be given as mentioned in sub- section (2)"
(8) "A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme".
Those sections broadly speaking came into force on 1 April 1997.
"It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No. 2) (1977) 137 C.L.R. 396, 404, Barwick C.J. construed the word "legitimate" in that phrase as expressing the concept of "entitlement or recognition by law". So understood, the expression (as Barwick C.J. rightly observed) "adds little, if anything, to the concept of a right". With great respect to Barwick C.J., their Lordships consider that the word "legitimate" in that expression falls to be read as meaning "reasonable". Accordingly "legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg. -v- Criminal Injuries Compensation Board ex parte Lain  2 Q.B. 864."
To what has the authority committed itself?
The interrelation of the second and third questions
Has the authority acted unlawfully? Introduction
Has the authority acted unlawfully? The relevance of reliance on the promise.
"The categories of unfairness are not closed, and precedent should act as a guide and not as a cage".
"Mr. Beloff submits ... (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. He cites authority in support of all these submissions and for my part I am prepared to accept them as correct, so far as they go. I would however add a few words by way of comment on his fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation".
"Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto."
"Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such".
"Mr Gill submitted that the period that the appellant spent "in limbo", awaiting the progression of [the test case] to the House of Lords has involved further hardship. The prolonged period of uncertainty as to his fate will have caused him mental stress and he will have been forced to subsist without the benefits of those whose claim to asylum has been recognised. ... I consider that this hardship is material to the question of whether it would now be fair for the Secretary of State to remove the appellant to Germany on the basis that the decision for which he has been waiting is of no relevance to his case. It is unfair for the Secretary of State to change tack at this late stage."
Has the authority acted unlawfully? "So unfair as to amount to an abuse of power".
The role of the court
" it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B then there would be a patient, C, who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration."
The present case
To what has the authority committed itself?
Has the authority acted unlawfully?
What should the court do?
"It is an Act to assist persons who are homeless, not an act to provide them with homes It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there are probably bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand."
"Those remarks seem to me still as true and perceptive as they were in 1986."