England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(A) THE MANCHESTER COUNTY COURT
MR RECORDER RIGBY
(LOWER COURT NO. M7X00036)
(B) THE IPSWICH COUNTY COURT
HIS HONOUR JUDGE HOLT
(LOWER COURT NO. 71P00588)

		(B) B5/2007/0804 Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2008

Lord Justice Wilson:

SECTION A: INTRODUCTION

1. These two appeals, heard together, raise the question whether two women, the first of whom was claiming, and the second of whom had been accepted, to be homeless and in priority need under Part VII of the Housing Act 1996 ("the Act") and who were occupying women's refuges, there had "accommodation ... which it would have been reasonable for [them] to continue to occupy" within the meaning of s.191(1) of the Act. If so, then, when they deliberately acted so as to cause themselves to be evicted from the refuges, they became intentionally homeless and the local housing authorities were entitled to conclude, in the case of the first woman, that they did not owe her the main housing duty under s.193 of the Act ("the main duty") and, in the case of the second, that they ceased to owe her the main duty by virtue of s.193(6)(b) of the Act.
2. Since the coming into force of s.14(2) of the Housing and Planning Act 1986 there has been symmetry between the definitions of homelessness and intentional homelessness in what are now ss.175 and 191 of the Act. Section 175 provides:

"(1) A person is homeless if he has no accommodation available for his occupation …

…

(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."

Section 191 provides:

"(1) 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."

3. So, subject to other provisions to which it is unnecessary to refer, a woman is homeless if she does not have a place which can be described as accommodation or if her accommodation is not such that it would be reasonable for her to continue to occupy it. Symmetrically, she is intentionally homeless if the consequence of her deliberate act (or omission) is that she ceases to occupy a place which can be described as accommodation and which is such that it would have been reasonable for her to continue to occupy it. It follows that if, while occupying a refuge, a woman is already homeless, whether because a refuge cannot be described as accommodation or because it is not reasonable for her to continue to occupy it, a deliberate act (or omission) on her part of which the consequence is that she ceases to occupy the refuge cannot make her intentionally homeless.
4. The territory of the present appeals is alleged intentional homelessness. But, in the light of the symmetry to which I have referred, the first two of the three questions which arise in the appeals would also arise in the case of a woman who continues to occupy a refuge and who, while doing so, claims to be owed the main duty. First, can a women's refuge be described as accommodation for the purposes of the Act? If so, second, can it be reasonable, for the purposes of the Act, for a woman to continue to occupy a refuge? If so, third, was it lawful for Manchester and Ipswich (for it is convenient so to refer to the two housing authorities) to conclude that it would have been reasonable for the two women to continue to occupy the refuges? Unless in the case of each woman the answer to all three questions is "yes", she was not intentionally homeless and the main duty was –or remained – owed to her.
5. We are told that it may be helpful for housing authorities to have guidance as to the proper treatment of claims of homelessness by women who are in refuges or have been excluded from refuges. In this regard the only reported decision is that of Hodgson J. in R v. London Borough of Ealing Ex p. Sidhu (1982) 2 HLR 48 ("Sidhu"). In forthright terms Hodgson J. there approved the conclusion of a county court judge in another case that "women living in refuges were still homeless" under the terms of the initial precursor of the Act, namely the Housing (Homeless Persons) Act 1977. As I will explain, the conclusion of Hodgson J., although not clearly reasoned, must have been to the effect that a women's refuge, albeit accommodation in the ordinary sense of the word, cannot be described as "accommodation" for the purposes of the homelessness legislation.
6. Manchester and Ipswich invite us to overrule the decision in Sidhu. The two women, by contrast, invite us to affirm it. We have permitted Ms Moran, the respondent in the Manchester case, to adduce fresh evidence in this court from Ms Holly, the National Policy and Services Officer for the Women's Aid Federation of England. In her statement Ms Holly makes clear that the refuge movement is concerned lest women in refuges should fail to qualify as homeless under Part VII of the Act. Its fear is that, unless housing authorities owe to women in refuges, if eligible for assistance and with a priority need, the main duty to accommodate them immediately, as homeless, under s.193 of the Act, refuges will silt up with women in effect required to remain in occupation of them for lengthy periods until council accommodation is allocated to them under the schemes set up by housing authorities pursuant to Part VI of the Act; and thus that refuges will find themselves unable to fulfil their essential task of providing emergency sanctuary for women in flight from violent partners. Ms Holly summarises the movement's stance as follows:

"If women who had fled violence and sought shelter in refuges were not homeless whilst staying at refuges the local housing authority would not owe them any duty as they would not be deemed to be homeless. They would therefore remain in accommodation without moving-on: contrary to one of the main purposes of refuges which is to assist women to move into their own accommodation. This in turn would bring our work to a grinding halt. We would otherwise be forced into issuing immediate 28 days notices to quit when women came to us for refuge in order that we could ensure that their homelessness status would be preserved. This would clearly be highly unsatisfactory and would mean that the women who we seek to assist would be left feeling very vulnerable."

So Ms Holly commends the view that, for the purposes of the Act, a refuge cannot be described as "accommodation" and that therefore Sidhu was correctly decided; or that, at any rate, it cannot be reasonable, for the purposes of the Act, for a woman to continue to occupy a refuge.

7. Section 182(1) of the Act provides that, in the exercise of their functions relating to homelessness, housing authorities shall have regard to such guidance as may be given by the Secretary of State. In July 2006, pursuant to the subsection, the Secretary of State for Communities and Local Government issued a Code of Guidance ("the Code"), two paragraphs of which relate to claims of homelessness made by women occupying refuges and to the placement by authorities of homeless women in refuges. Furthermore s.177(3) of the Act enables the Secretary of State by order to specify circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation. Allegedly unhelpful to the contention of the women that it cannot be reasonable, for the purposes of the Act, for a woman to continue to occupy a refuge is the fact that, while the Secretary of State thus has power in effect so to provide, she has chosen not to do so. It was for the above reasons that this court acceded to an application by the Secretary of State for permission to intervene in the appeals.

SECTION B: THE HISTORIES

(i) The Manchester Case

8. Ms Moran has two children who, on 31 October 2006, when Manchester decided that she was intentionally homeless, were aged three and two. Until 30 September 2006 she and the children lived on and off with her partner in council accommodation in Moss Side, of which she and he were joint tenants. On 30 September 2006, following an act of domestic violence perpetrated by her partner towards her, Ms Moran left the accommodation with the children. She went with them first to a refuge in Trafford but on 18 October 2006, in order to be nearer to her family, she moved with them to a refuge in Bury run by North Manchester Women's Aid ("NMWA").
9. On 18 October 2006 Ms Moran and an officer of NMWA signed a pro forma licence agreement which set out the terms of her licence to occupy the refuge. The agreement recited that the refuge offered "temporary accommodation, advice and support for women and children who are experiencing domestic violence". Under the heading "Occupancy" it provided as follows:

"There is no fixed length of stay. Although the refuge is temporary accommodation, (between 3 to 6 months) it can be your home for as long as you need it while you decide what to do. This may be to return home, to make a complete break and obtain permanent housing or to make alternative arrangements. [NMWA] can help you with this but residents must take appropriate steps to secure suitable permanent accommodation for themselves and their children. Residents will normally be expected to register with Manchester City Council Homeless Families section or Direct Access for Rehousing."

Under the heading "Withdrawal of the Licence" the agreement provided that NMWA could withdraw Ms Moran's licence for non-payment of the specified accommodation charge, violence, threatening behaviour, harassment, any behaviour causing annoyance to other residents or staff, or other specified reasons. It made clear that, were the licence withdrawn by reason of her violence or threatening behaviour, Ms Moran could, and probably would, be asked to leave immediately. While it was provided that she could bring the licence to an end by giving four weeks' notice to quit to NMWA, it should be noted that there was no reservation to NMWA of a right to give notice to quit to her. As already explained, NMWA could evict her only for cause. Nevertheless the agreement provided that NMWA could alter its terms upon four weeks' notice: so it could thereby have introduced a right to give notice to quit to her.

10. At the refuge Ms Moran and the children were provided with one bedroom and a private bathroom. They had to share kitchen and washing facilities. She was later to tell Manchester's reviewing officer that, apart from being confined indoors, she had liked living at the refuge and had planned to continue to do so until Manchester rehoused her.
11. On 30 October 2006 Ms Moran, who has mental health problems and poor coping skills, lost her temper with members of staff at the refuge and began to shout and scream. When she failed to calm down, the manager terminated her licence by reason of threatening behaviour and called the police, who removed her and the children. Although it was to be a ground of her appeal to the county court that Manchester had erred in law in concluding that on 30 October she had deliberately acted in such a way as to cause herself to cease to occupy the refuge, the ground was not advanced at the hearing of that appeal; so it proceeded, and the further appeal to us proceeds, on the basis that Manchester had been entitled so to conclude.
12. On the day of her eviction from the refuge Ms Moran applied to Manchester for accommodation on the basis that she was homeless and furthermore (which was clear) was both eligible for assistance and, in the light of the dependency of her children, in priority need. Manchester accepted that, pending their decision upon her application, they were under the interim duty cast by s.188 of the Act at once to provide her and the children with temporary accommodation. On the following day, however, they communicated their decision to her, namely that on 30 October, by reason of her conduct at the refuge, she had become intentionally homeless and that accordingly she should by 22 November 2006 vacate the temporary accommodation with which they had provided her.
13. Thereupon Ms Moran wisely consulted Shelter. By letter written on her behalf and dated 15 November 2006, Shelter requested Manchester to review their decision pursuant to s.202 of the Act. It argued that Ms Moran could not be intentionally homeless because she had not had "settled accommodation" at the refuge. By letter dated 6 March 2007 the reviewing officer stated that she had decided to uphold the decision that Ms Moran was intentionally homeless. She stated her conclusion that "accommodation" had been available to Ms Moran at the refuge and that it would have been reasonable for her to continue to occupy it. Indeed, apparently agreeing that it was necessary to ask whether Ms Moran had had "settled accommodation" at the refuge, the officer answered in the affirmative. She set out reasons for her conclusion that the cessation of Ms Moran's occupation of the refuge had been intentional. She stated that, in reaching her decision, she had had regard, among other things, to Chapter 7, entitled "Intentional Homelessness", of the Secretary of State's Code of Guidance. But "Intentional Homelessness" is the title of Chapter 11 of the Code which was dated July 2006 and which became operative in September 2006; it is the title of Chapter 7 only of the previous edition dated July 2002. So it is clear that, in reaching her decision, the officer had consulted an out-of-date edition of the Code. There is, however, no evidence that the relevant part of Chapter 11 of the current edition is in terms different from that of Chapter 7 of the out-of-date edition; so in my view her error, though unfortunate, has not been shown to be material.
14. Ms Moran appealed to the county court pursuant to s.204 of the Act on the basis that the reviewing officer's decision was wrong in law. The appeal was determined by Mr Recorder Rigby in the Manchester County Court on 16 May 2007. The recorder held that the officer had been wrong to ask whether Ms Moran had had "settled accommodation" at the refuge; noted that in Sidhu Hodgson J. had held that women living in refuges were homeless; held that the officer had wrongly failed to have regard to guidance in what in the current edition is Chapter 8 of the Code (which I will set out in [40] below), to the effect that refuges were intended to provide very short-term accommodation in a crisis and should not be regarded as reasonable for a woman to continue to occupy in the medium and longer term; and concluded that, while he did not think that he could hold that a refuge could not be accommodation which, for the purposes of the Act, it would be, or would have been, reasonable for a woman to continue to occupy, there was a "very very strong inference" that it would not be, or not have been, reasonable in that sense; and that the officer's decision should be quashed in order that she should make a fresh decision in the light of his judgment. It is from the recorder's order that Manchester appeal to this court. By a respondent's notice Ms Moran asks us to uphold his order on one or other or both of two further bases, namely, for the purposes of the Act, that a refuge cannot be described as accommodation and that it cannot be reasonable for a woman to continue to occupy a refuge.

(ii) The Ipswich Case

15. On 20 July 2006 Ms Richards, who has no dependent child, fled from her home in Harlow as a result of her partner's violence and was admitted to a refuge in Ipswich run by Ipswich Women's Aid. She and an officer of the refuge signed a licence agreement. The agreement is not in evidence but there was apparently a term that, if it had reasonable grounds to suspect that Ms Richards posed a risk to any person's health or safety there, the refuge could terminate the licence in writing with immediate effect. Ipswich tell us that in the agreement the refuge also reserved the right to give her 28 days' written notice to quit without showing cause.
16. At the refuge Ms Richards was given a private bedroom and an en suite lavatory. She had to share the bathroom, the living room and the kitchen, with seven other women and their children. Her evidence was that these communal facilities were dirty and that she disliked staying at the refuge but was content to continue to do so until Ipswich provided her with permanent accommodation, which she assumed would be within about two months. On 25 July 2006, to this end, she applied to them, as a homeless person, pursuant to Part VII of the Act.
17. By letter dated 1 September 2006, Ipswich informed Ms Richards of their decision that they owed to her the main duty under s.193 of the Act in that she was homeless but not intentionally, was eligible for assistance and had a priority need. Ipswich wrote that they would ensure that suitable accommodation became available for her occupation. It is convenient to note that Ms Richards later raised the argument, abandoned in this court, that, in the light of the fact that, at the date of that decision, she was staying at the refuge, such was a decision that she was homeless while staying there. Ipswich had countered by stating that, on the contrary, their decision was only that, in the light of the domestic violence and pursuant to s.177(1) of the Act, it had not been reasonable for Ms Richards to continue to occupy the home in Harlow. It is indeed not the case that an applicant under Part VII must safeguard her or his application by living on the streets from the date of the application until the date of the decision; indeed, although in the case of Ms Richards it was by her own efforts that she had already secured accommodation at the refuge, housing authorities may be required, by ss.188 and 206 of the Act, to secure that suitable accommodation is available for the occupation of applicants pending the decision; and under s.188(3) of the Act they have power to continue to secure it pending review of their adverse decision. Were the availability of accommodation to applicants, even if suitable in those short terms, to invalidate their applications, the statutory system would be self-defeating. There is a good analogy with care proceedings in which, notwithstanding that at their outset a child has been taken into the interim care of the local authority, the court can nevertheless later find that he "is suffering" significant harm in the home of the parents and, in so finding, it ignores the interim protective arrangements: In Re M (A Minor) (Care Orders: Threshold Conditions) [1994] 2 AC 424.
18. It follows that from 1 September 2006 Ipswich were under a duty to secure that "suitable" accommodation was available for occupation by Ms Richards (ss.193(2) and 206(1) of the Act). So "suitability", which does not arise, even indirectly, in the Manchester case, arises, at least indirectly, in the Ipswich case. It is implicit in their letter dated 1 September that Ipswich considered that, in the first instance and while they set about securing accommodation for her in the long term, the refuge was suitable accommodation for her. But, by letter to her dated 8 November 2006, Ipswich made their position explicit: they wrote that "in the first instance" they proposed to discharge their duty to her by securing that accommodation was available for her occupation at the refuge and that, were the refuge not suitable for the full discharge of their duty, they would offer her alternative accommodation at the earliest opportunity.
19. By letter dated 10 November 2006, Ipswich offered to Ms Richards a tenancy of a flat in Ipswich owned by a housing association. They contended that the flat was suitable for her. Ms Richards responded that, for various reasons, it was unsuitable for her. She had a right to request Ipswich to review the suitability of the flat (see s.193(5) of the Act); but her invocation of such a procedure was overtaken by events and her rejection of the flat is irrelevant to the appeal.
20. The relevant events occurred on 17 November 2006 when, at the refuge, and notwithstanding a warning about her threatening behaviour on a previous occasion, Ms Richards lost her temper with a member of staff, pointed in her face, swore at her and threatened her. By letter timed 11:30am on that day, the refuge gave her notice to leave by 4:00pm that day. She left. On an emergency basis Ipswich placed Ms Richards in a guest house. By letter dated 22 November 2006, they told her that in their view she was intentionally homeless in that the refuge had been accommodation which it would have been reasonable for her to continue to occupy; but that, in the light of their limited duty under s.190(2)(a) to secure that accommodation would remain available for such period as would give her a reasonable opportunity of securing accommodation for her occupation, they would allow her to continue to occupy the guest house until 2 January 2007.
21. Thereupon Ms Richards wisely consulted the Coastal Homeless Action Group. By letter written on her behalf and dated 21 December 2006, the Group requested Ipswich to review their decision. It argued that her cessation of occupation of the refuge had not been intentional and that in any event a refuge could not be suitable accommodation. In the exercise of their power to secure accommodation for an applicant's occupation pending review under s.188(3) of the Act, Ipswich extended her permission to occupy the guest house until 5 February 2007. But, by letter dated 26 January 2007, Ipswich's Review Officer, upheld their decision. He wrote that the refuge had been suitable accommodation for Ms Richards in the short term, that it would have been reasonable for her to continue to occupy it in the short term and that her cessation of occupation of it had been the consequence of her own deliberate act, with the result that she was intentionally homeless.
22. Ms Richards appealed to the county court pursuant to s.204 of the Act on the basis that the reviewing officer's decision was wrong in law. The appeal was determined by His Honour Judge Holt in the Ipswich County Court on 2 April 2007. The judge dismissed her appeal. Contrary to the submissions made on her behalf, he held that Ipswich had been entitled to conclude that her accommodation at the refuge had remained suitable and reasonable for her to continue to occupy until and indeed beyond 17 November 2006. The judge also dismissed the argument to which I have referred at [17] above. Realistically Ms Richards did not, before the judge, maintain her complaint about the legitimacy of the finding that any homelessness had been intentional. It is from the judge's order that Ms Richards appeals to this court.

SECTION C: THE LAW

23. A fasciculus of provisions for the protection of the homeless was introduced in the Housing (Homeless Persons) Act 1977, was replaced by the Housing Act 1985 and is now located in Part VII of the Act of 1996. Subject to qualifications irrelevant to the current appeals, the Act of 1977 provided, by s.1(1), that a person "is homeless … if he has no accommodation". In the Act of 1977 there was no provision analogous to s.175(3) of the Act of 1996, which I have set out at [2] above, to the effect that accommodation is not to be treated as such unless it would be reasonable for the person to continue to occupy.
24. Such was the state of the law in 1982 when Hodgson J. decided Sidhu. In July 1981 the applicant in that case, in flight from domestic violence, had gone, with her two young children, to stay in a women's refuge. The judge observed, at 49, that, like all such refuges, it was under extreme pressure. She and the children had been given a bedroom of their own. In November 1981, four months later, the housing authority determined that she was not homeless. The judge upheld her application for judicial review. He was sharply critical of the authority even for submitting that she and the children were not homeless. He accepted, at 53, that "they are being, as they have been for five months, accommodated by the charity of the Women's Aid organisation" (my emphasis) but he held that they had no accommodation for the purposes of the Act of 1977. He cited a dictum of Lord Lowry in Din v. Wandsworth LBC [1983] AC 657 ("Din"), at 677F, that "to be homeless and to have found some temporary accommodation are not mutually inconsistent concepts". The correctness of Lord Lowry's dictum was later doubted by the House of Lords in R v. Brent LBC ex p. Awua [1996] 1 AC 55 ("Awua"), per Lord Hoffmann at 69G; indeed their decision in Awua is inconsistent with it. It is clear, however, that Hodgson J. reached his decision primarily by reference to considerations of policy, namely that it was important to the furtherance of the objective of refuges, which was to provide "crisis accommodation", that housing authorities should owe to women who occupied them the duties owed to the homeless.
25. Mr Luba Q.C. on behalf of Ms Moran, supported by Mr Hodgson on behalf of Ms Richards, submits that the decision in Sidhu was and remains correct; that, although the word "accommodation" in what is now the Act of 1996 must be construed in the same way wherever there found, it is unnecessary to give it the meaning which it might bear in other contexts; and that its construction where found in the Act should be purposive or, in the words of Lord Wilberforce in Din at 664A, "the Act [of 1977] must be interpreted … with liberality having regard to its social purposes".
26. Shortly after the decision in Sidhu came that of Stephen Brown J. in R v. Waveney DC ex p. Bowers, The Times, 25 May 1982 ("Bowers"), reversed by this court on another point ([1983] 1 QB 238). A man sought judicial review of a decision that he was not homeless under s.1 of the Act of 1977. For 15 months he had been using a night shelter in Lowestoft. It was an unheated dormitory in a derelict building. It was empty and closed between 8:00am and 8:00pm each day. If on any evening he presented himself at the shelter at or after 8:00pm, he was offered a bed, unless it was already full, in which case he was turned away. Stephen Brown J. held that the housing authority's decision that he had accommodation at the shelter was irrational.
27. In Puhlhofer v. Hillingdon LBC [1986] AC 484 ("Puhlhofer") a married couple lived with a young child and later also a baby in one room of a guest house. They were given breakfast but were not provided with cooking or washing facilities. They sought judicial review of the housing authority's determination that they had accommodation. They succeeded at first instance but were unsuccessful both in this court and in the House of Lords. Notwithstanding unanimity as to the result, there was a difference of opinion between the members of this court as to the proper approach. Ackner L.J. based his judgment on the fact that, notwithstanding the absence in s.1 of the Act of 1977 of any such provision as is now to be found in s.175(3) of the Act of 1996, s.17 of the Act of 1977, which governed intentional homelessness, did contain a provision in effect identical to that now to be found in s.191(1) of the Act of 1996, which I have set out in [2] above. Thus, taken at face value, the legislation gave rise to an unhappy paradox: for, if a person remained in occupation of a place which could be called accommodation but which it was not reasonable for him to continue to occupy, he was apparently not homeless, whereas, if he chose to leave such accommodation, he became homeless and, more significantly, his homelessness was not intentional. In order to eliminate the paradox Ackner L.J. held, at 493D-F, that into the definition of homelessness in s.1 of the Act of 1977 should be imported a requirement that the accommodation should be reasonable for the person to continue to occupy. The other members of the court (Slade and Glidewell LJJ) disagreed.
28. The House of Lords in Puhlhofer unanimously agreed with the view of the majority in this court. Lord Brightman gave the only substantive speech. He held, at 517E-H, that the only question under s.1 was whether the person had accommodation; that accommodation had to be capable of accommodating; thus that, if for example it was so small a space as to be incapable of accommodating, the person would be homeless; and, more generally, that some places in which a person might choose or be constrained to live could not properly be regarded as accommodation. Lord Brightman then made a reference to the barrel of Diogenes which, with respect, was neatly apt but has since become hackneyed by repetition. Then, in words at 517G inconsistent with the submission of Mr Luba to us noted at [25] above, Lord Brightman defined the question as being whether the person had what could properly be described as accommodation "within the ordinary meaning of that word in the English language". Sidhu had been cited to the House of Lords but was not mentioned by Lord Brightman. Thus contrary arguments are presented to us that it is significant that he chose to state neither that that decision had been wrong nor, alternatively, that it had been right. In that in Sidhu Hodgson J. had, inevitably, accepted that the applicant had accommodation within the ordinary meaning of the word, I regard the reasoning of the House of Lords in Puhlhofer as inconsistent with his decision.
29. The result of the decision of the House of Lords in Puhlhofer was that the paradox which had exercised Ackner L.J. remained, even in Part III of the Housing Act 1985 which replaced the Act of 1977 and came into force two months after the decision. But Parliament quickly reversed the effect of the decision. By s.14(2) of the Housing and Planning Act 1986, it inserted into the Act of 1985, as s.58(2A), the provision which is now to be found in s.175(3) of the Act of 1996 and which I have set out at [2] above. The reasons of policy and logic which, prior to the decision of the House of Lords in Puhlhofer, had led Hodgson J in Sidhu and Ackner L.J. in Puhlhofer itself to give an unusually narrow construction to the word "accommodation" when found in the legislation no longer obtained: for, even if the person had accommodation, he was nevertheless not to be treated as having it unless it was reasonable for him to continue to occupy it.
30. Under the Act of 1996 there are two different criteria by which a housing authority is required to judge accommodation. One relates to their decision whether a duty or power has arisen in relation to a person ("the threshold criterion") and the other to their decision how to discharge any duty, or to exercise any power, which has arisen in relation to him ("the functions criterion"). The threshold criterion is whether the applicant has accommodation which it "would be reasonable for him to continue to occupy" or, in the case of a person who, in consequence of a deliberate act or omission, has ceased to occupy accommodation, whether it "would have been reasonable for him to continue to occupy" it: ss.175(3) and 191(1) of the Act. The functions criterion is whether the accommodation secured by the authority for the person's occupation is "suitable": s.206(1) of the Act. Under the Act all accommodation proposed to be made available by the authority for a person's occupation, whether pursuant to the main duty owed under s.193 or to the more limited duties or powers contained in the Act, has to be suitable. But the requirement of suitability was first limited to accommodation required to be provided pursuant only to the main duty; and, interestingly, it was introduced in the same section of the Act of 1986 (namely by subsection (3) of section 14) as, by subsection (2), reversed the effect of the decision in Puhlhofer.
31. In the course of argument we asked counsel to explain what Parliament had had in mind in providing, both in 1986 and, again but more widely, in 1996, that the threshold criterion should be that accommodation should be "reasonable for a [person] to occupy" but that the functions criterion should be that it should be "suitable". What, indeed, was the difference? I am sure that it was through no fault of counsel that we obtained no clear answer. In favouring a difference of words, particularly in the same section of an Act, Parliament should prima facie be taken to convey a difference of meaning. It is clear that, if accommodation is not reasonable for a person to occupy, it is not suitable for him: such was recently decided by this court in Birmingham City Council v. Aweys [2008] EWCA Civ 48, per Ward LJ at [38] and Arden LJ at [59]. It does not follow however that, if it is reasonable for him to occupy, it is suitable for him. Ipswich accept that suitability represents a higher standard of accommodation than reasonableness to occupy. Indeed the meaning of suitability is now subject to statutory qualifications – by virtue both of s.210(1) of the Act and of the Homelessness (Suitability of Accommodation) (England) Order 2003, 2003 No. 3326, made pursuant to s.210(2) thereof – which do not apply to whether accommodation is reasonable for a person to occupy.
32. In that in the Ipswich case the authority had accepted that they owed to Ms Richards the main duty under s.193 of the Act, viz to provide her with suitable accommodation or to secure that she obtained it, and in that they had purported to comply with their duty by securing in the first instance that the refuge remained available for her occupation, it is perhaps unsurprising that analysis of her case both by the reviewing officer and by the judge should have included reference to the suitability of the refuge. Strictly, however, its suitability was a red herring. Ms Richards did not challenge the decision of Ipswich to discharge their duty by securing for her the continued availability of the refuge so its suitability was not in issue; rather, she challenged their decision, made under s.193(6)(b) of the Act, that they had ceased to owe her the main duty because she had become intentionally homeless by causing herself to be evicted from the refuge. Thus, by virtue of s.191, the only question was whether Ipswich had lawfully concluded that the refuge was accommodation which it would have been reasonable for her to continue to occupy.
33. In Awua Tower Hamlets had accepted the main duty towards the applicant under the Act of 1985 and had provided her with short-term accommodation; but, when she refused their offer of a permanent flat, they had decided that their duty towards her was at an end and had caused her to leave the accommodation. The case proceeded on the basis that they had been entitled to do so. Thereupon she applied to Brent, which decided that they owed no main duty towards her in that, by rejecting the flat, she had caused herself to cease to occupy the short-term accommodation. The deputy judge decided that Brent's decision was unlawful because the accommodation which she had caused herself to cease to occupy had not been "settled". This court allowed Brent's appeal but only on the basis that such accommodation had been "settled". The House of Lords unanimously dismissed her appeal: it held, however, that, for the purposes of the Act of 1985, accommodation did not have to be "settled" at all.
34. In Awua the only substantive speech was given by Lord Hoffmann. He suggested, at 69H-70B, that, in determining homelessness, including intentional homelessness, the requirements were first, in accordance with Puhlhofer, that the person had, or had had, a place which could fairly be described as accommodation and second, since 1986, that it would be, or would have been, reasonable for the person to continue to occupy it; and that there was no third requirement that it should be settled or permanent. As an instance of a place which could not fairly be described as accommodation, Lord Hoffmann referred, at 67A, to the night shelter in Bowers. Counsel had referred to Sidhu, but Lord Hoffmann did not mention it. Is it therefore significant that he did not expressly disapprove it or, on the contrary, that he did not expressly approve it? In my view the decision of Hodgson J that a refuge cannot constitute accommodation for the purposes of the legislation is as inconsistent with Awua as it is with Puhlhofer. In relation to the second requirement Lord Hoffmann said, at 68B-D, as follows:

"… 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 to occupy such accommodation. At this point they come back within the definition of homeless..."

35. In Awua Lord Hoffmann proceeded, from 68E to 69H, to identify the entirely different area of the statutory framework in which reference had properly been made by the courts to "settled accommodation". It relates to the person who, after becoming intentionally homeless, occupies accommodation, or a series of accommodations, which, otherwise than intentionally, he ceases to occupy. The question arises whether he is still to be regarded as intentionally homeless. The answer depends upon whether the chain of causation between the deliberate act or omission in consequence of which he became intentionally homeless and his current homelessness has been broken. It was Ackner L.J. who, in the unreported decision of this court in Din, 23 June 1981, first suggested that what would break the chain of causation would be intervening accommodation which was "settled" as opposed to temporary; and, when that case reached the House of Lords, Lord Wilberforce, at 668A, approved the suggestion of Ackner L.J. It can therefore be seen that, just as the red herring in the Ipswich case was the reference to suitability, the red herring in the Manchester case was the reference to settled accommodation. For no question arose about the nature of any accommodation occupied by Ms Moran subsequently to the accommodation at the refuge from which she had caused herself to be evicted. Shelter introduced the red herring; the reviewing officer unnecessarily attended to it; and indeed it has to be said that she reached a barely rational conclusion that the accommodation at the refuge had been settled.
36. There is statutory elaboration of the proper approach to the question whether it would be, or would have been, reasonable for a person to continue to occupy accommodation. Thus s.177 of the Act provides as follows:-

"(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence … against him …

(2) In 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.

(3) The Secretary of State may by order specify –

(a) other circumstances in which it is to be regarded as reasonable for a person to continue to occupy accommodation, and

(b) other matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation."

37. In construing a provision analogous to s.177(2), namely s.17(4) of the Act of 1977 and thus (as I have explained) limited to determinations as to intentional homelessness, Lord Fraser of Tullybelton in Din suggested, at 671A-B, that it entitled a housing authority, when making their determination, to have regard to the scarcity of their accommodation and to the extent of their obligations to other families, in each case relative to that of other authorities. Mr Chamberlain, who appears before us on behalf of the Secretary of State, submits, in my view correctly, that the words of s.177(2) are wide enough also to entitle a housing authority to have regard to the general circumstances prevailing in relation to refuges in their district. The words of the subsection are, however, only permissive. I will explain in [48] and [50] below that I go further and conclude that, in any case in which a housing authority have to decide whether it would be, or would have been, reasonable for a woman to continue to occupy a refuge, the fact that the accommodation is a refuge requires them to consider particular additional matters.
38. The reference in s.177(3)(a) to "other circumstances" must mean circumstances other than those relating to probable domestic violence specified in subsection (1). The fact is that the Secretary of State has not used her power under s.177(3)(a) by order to specify any other circumstances. By reference to the matters of policy urged upon us by Mr Luba and Mr Hodgson, she might, for example, by order have specified that it is to be regarded as not reasonable for a woman to continue to occupy a refuge; but she has not done so. Part of their submission is that, in respect of refuges, we should apply to the words "reasonable … to continue to occupy" the gloss which the Secretary of State can apply but has not applied, namely to take them outside the ambit of the phrase.
39. The reference in s.177(3)(b) to "other matters" must mean matters other than those relating to general housing circumstances specified in subsection (2). The only order made pursuant, in part, to s.177(3)(b) is the Homelessness (Suitability of Accommodation) Order 1996, 1996 No 3204, which provides, irrelevantly to the appeals, for a person's ability to afford the accommodation to be taken into account in determining whether it would be, or would have been, reasonable for him to continue to occupy it.
40. I turn to the guidance given by the Secretary of State to housing authorities in the Code issued in July 2006, and, specifically, to the two paragraphs relating to refuges to which I referred in [7] above. Chapter 8 is entitled "HOMELESS OR THREATENED WITH HOMELESSNESS" and in it paragraph 8.34 provides as follows:

"Other factors which may be relevant in determining whether it would be reasonable for an applicant to continue to occupy accommodation include:

…

type of accommodation: some types of accommodation, for example women's refuges, direct access hostels, and night shelters are intended to provide very short-term, temporary accommodation in a crisis and it should not be regarded as reasonable to continue to occupy such accommodation in the medium and longer-term.

…"

Chapter 16 is entitled "SECURING ACCOMMODATION" and in it paragraph 16.27, headed "Women's refuges", provides as follows:

"Housing authorities should develop close links with women's refuges within their district, and neighbouring districts, to ensure they have access to emergency accommodation for women applicants who are fleeing domestic or other violence or who are at risk of such violence. However, housing authorities should recognise that placing an applicant in a refuge will generally be a temporary expedient only, and a prolonged stay could block a bed space that was urgently needed by someone else at risk. Refuges should be used to provide accommodation for the minimum period necessary before alternative suitable accommodation is secured elsewhere. Housing authorities should not delay in securing alternative accommodation in the hope that the applicant might return to her partner."

Although the latter paragraph relates to suitability, viz. the functions criterion, it is, as the Secretary of State submits, not without relevance to the present appeals.

41. It is apparent from paragraph 8.34 of the Code that, rightly or wrongly, the Secretary of State accepts neither that a woman who occupies a refuge cannot have accommodation within the meaning of the Act nor that it cannot be, or cannot have been, reasonable for a woman to continue to occupy a refuge. But Mr Luba and Mr Hodgson at least commend the Secretary of State's analogy of women's refuges with direct access hostels and night shelters and endorse her suggestion that it should not be regarded as reasonable for a woman to continue to occupy such accommodation in the medium and longer term.
42. In my view there is a problem about the Secretary of State's analogy in paragraph 8.34 of the Code between refuges, on the one hand, and direct access hostels and night shelters (exemplified in Bowers), on the other; and an allied problem about her proposition that refuges are intended to provide very short-term, temporary accommodation in a crisis. Formerly, perhaps in 1982 when Sidhu was decided, such a presentation of the nature of refuges in general may have been appropriate; and in relation to some refuges it may remain appropriate today. But, on the evidence before us, the generality of her presentation is nowadays misleading. This evidence comes from two sources.
43. The first source is the evidence of NMWA in the Manchester case. I have set out at [9] above the terms of its licence agreement with Ms Moran in relation to "Occupancy", in particular the provision that "although the refuge is temporary accommodation (between 3 to 6 months) it can be your home for as long as you need it while you decide what to do". The terms proceed to require women to take steps to secure suitable permanent accommodation and normally to register with Manchester on the basis that they are homeless. Housing authority schemes for the allocation of permanent accommodation must give priority to the homeless (see s.167(2)(a) and (b) in Part VI of the Act); and Mr Freedman QC on behalf of Manchester tells us that on average a homeless person to whom Manchester have accepted the main duty may expect an offer of permanent accommodation under Part VI at the expiry of about a year. This suggests that, provided (as Mr Luba stresses) that she has been accepted as homeless, a woman in the NMWA refuge may need to stay there for about a year. That in principle the refuge permits a woman to do so is clear not only from the terms of its licence agreement but also from evidence placed by Manchester before the recorder to the effect that, according to an officer of NMWA, a woman's occupation of the refuge normally continues for at least six months and that, had she not caused herself to be evicted, Ms Moran could have remained there even for two years if necessary.
44. The second source is the evidence of Ms Holly, which we permitted Ms Moran to adduce in opposition to the appeal. At [6] above I have quoted Ms Holly's summary of the stance of the refuge movement in relation to these appeals. Additionally she tells us that:

(a) The government's funding of refuges remains at the core of its response to protecting and supporting survivors of domestic violence.

(b) In 2005/2006 about 17,000 women and 19,000 children stayed in refuges within her federation.

(c) Such figures were significantly reduced from those referable to 2004/2005; the reduction was primarily attributable to a slower turnover of women and children in that they proved unable to move to permanent accommodation as quickly as before.

(d) "Refuges are not crisis accommodation which is only suitable for a few nights' or weeks' occupation."

(e) The federation has no statistics as to the average length of time spent by women in their refuges. Of those staying in the refuges on 2 November 2006, however,

(i) about 6% had been there for less than a week;

(ii) about 39% had been there for between a week and nine weeks;

(iii) about 38% had been there for between nine weeks and 24 weeks; and

(iv) about 15% had been there for more than 24 weeks.

What the federation lacks are figures for the further length of time for which these women stayed there.

(f) Refuges expect women to stay for between about three and nine months but in areas of particular shortage of public housing stock (for example, she says, London and Manchester) they often have to stay for up to a year.

(g) Another important factor which affects the length of a woman's stay in a refuge is her need of support and of a renewed sense of security in the aftermath of her abusive relationship and the extent to which the refuge succeeds in providing them to her.

45. In the light of the above evidence the Secretary of State should in my view take an early opportunity to reconsider her treatment of refuges in paragraph 8.34 of the Code. She may also find it useful to consider my views expressed in [48] and [50] below.

SECTION D: CONCLUSIONS

46. I reject the submission made on behalf of Ms Moran and Ms Richards that a woman's refuge cannot be described as accommodation for the purposes of the Act. In my view the decision in Sidhu to the contrary effect is wrong. It is inconsistent with the decisions of the House of Lords in Puhlhofer and Awua. It was founded in part on a dictum of Lord Lowry in Din which was doubted in Awua. As the law stood at the time when Sidhu was decided, there was no statutory facility for examination by a housing authority of the issue for which such a case naturally called, namely whether, although the refuge was accommodation, it was reasonable for the woman to continue to occupy it. In the absence of that facility Hodgson J., understandably exercised by considerations of policy, placed an unnatural construction on the word "accommodation", and (it has to be said) interspersed his judgment with a certain amount of indignant bluster.
47. I also reject the submission made on behalf of the two women that it cannot be reasonable, for the purposes of the Act, for a woman to continue to occupy a refuge. The Secretary of State can override the need for individual factual enquiry by making a blanket order to that effect; indeed Parliament might thus have provided within the Act itself, just as it did in relation to such occupation of accommodation as would probably lead to domestic violence. But such powers are not conferred upon us. In the absence of such order or such provision (which our determination of these appeals might conceivably precipitate), neither the housing authorities nor, insofar as an appeal on a point of law in any event permits, the courts can do more than to apply the words to the facts of each case.
48. I conclude that, where the enquiry is whether it would be (or, as in the present cases, would have been) reasonable for a woman to continue to occupy a refuge as opposed to other accommodation, particular matters fall to be considered in addition to the general matters which fall to be considered in any enquiry under s.175(3) or s.191(1) of the Act.
49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(c) her ability to afford it;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.

It follows that I do not regard the above as inconsistent with the decision in Awua that the temporary nature of accommodation does not, without more, affect whether it is reasonable for a person to continue to occupy it. For, in the case of a refuge, there is more.

51. Unsurprisingly the approach of the reviewing officers in the present cases to the crucial issue, namely whether it would have been reasonable for Ms Moran and Ms Richards to continue to occupy the refuges, did not run closely along the lines which I have suggested above. But the question is whether, had it done so, they could reasonably have reached any different conclusion; if not, their error of law would not have been shown to be material. My view is that, even had it done so, they could not reasonably have reached any different conclusion; and that the attention which each gave to different red herrings, in addition to their consideration of the crucial issue, does not invalidate their determinations. In the Manchester case it was, with respect to him, the recorder who perpetrated the error of law in purporting to discern a material error of law in the reviewing officer's decision. In that case the overarching factors were that, at the time of her eviction, Ms Moran and her children had been occupants of the refuge only for 12 days; that the size and quality of the accommodation provided for them there were reasonable; that, as she conceded, she basically liked the refuge and had planned to continue to occupy it until Manchester rehoused her; and that the policy of that refuge was such as would, in the absence of misconduct on her part, have enabled her to do so. In the Ipswich case the overarching factor was that, although Ms Richards had been an occupant of the refuge for four months, there were strong indications that her need to continue to do so was about to end: for she had risen to the position within Ipswich's scheme under Part VI of the Act at which, a week prior to her eviction, one offer of permanent accommodation, albeit allegedly unsuitable, had already been made to her.
52. So I would allow the appeal in the Manchester case and dismiss the appeal in the Ipswich case.

Lord Justice Tuckey:

53. I agree.

The Right Hon. Sir Anthony Clarke, Master of the Rolls:

54. I also agree.