England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
OCL40013

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2011

LORD JUSTICE ETHERTON :

Introduction

1. This is an appeal from the order dated 28 June 2010 of His Honour Judge Mitchell in the Central London County Court. By that order he dismissed the appeal of the appellant, AS, from the review decision of the respondent, the London Borough of Camden ("Camden"), that Camden had discharged its duty to house the appellant pursuant to the homelessness provisions of Part 7 of the Housing Act 1996 ("the Act").
2. The issue on the appeal is a short but important one concerning the type of accommodation which must be made available by a local housing authority to an applicant under Part 7 of the Act where one or more other persons normally reside with the applicant as members of his or her family. The issue is whether that accommodation can be provided by way of two or more self-contained units of accommodation, each to be occupied by different family members, and none of the family members sharing any communal living areas. Camden contends, and the Judge held, that the offer of such accommodation is capable of discharging the housing authority's duties under Part 7.

The factual background

3. The appellant lives together with her father, who is not in good health and for whom she acts as a carer, and her younger sister, who is a minor and attends school. Camden accepted that it owed a full housing duty to the appellant under Part 7 of the Act. Camden secured temporary accommodation for all three of them in a private sector three bedroom house in the Tottenham area of London. They have lived there since October 2004. In November 2009 Camden offered the appellant by way of further temporary accommodation two separate flats, [addresses] London NW3, in a building used as a hostel by Camden. One of the flats could accommodate two single people, and the other was suitable for one person. The intention was that one would be occupied by the appellant and her sister, and the other would be occupied by the appellant's father. The flats were some yards apart, but on the same floor. Camden notified the appellant that it considered the flats were suitable accommodation for her and her household under section 193(5) of the Act.
4. The appellant refused the offer. She gave her reasons in a letter dated 10 November 2009. They were principally that the accommodation offered consisted of two separate units, and, due to her father's medical condition and the fact they should be permitted to live as a single family unit in the same accommodation, the property offered was unsuitable.
5. On 23 December 2009 Camden upheld its decision that the offered accommodation was suitable, and notified the appellant that, as a result of her refusal of the offer, Camden's full housing duty had come to an end by operation of section 193(5) of the Act.
6. The appellant requested a review pursuant to section 202 of the Act. On 16 February 2010 Camden's review officer notified the appellant that he considered the offered accommodation was suitable, and that he upheld Camden's original decision, and that Camden had discharged its duty to her and had no duty to continue to provide her with accommodation.
7. The appellant appealed to the County Court pursuant to section 204 of the Act. That appeal was, as I have said, dismissed by HH Judge Mitchell.

The legislation

8. The statutory framework, so far as relevant to the determination of this appeal, may be summarised as follows.
9. Part 7 of the Act sets out the duties and powers of a local housing authority in relation to receiving, and reaching a decision on, an application from a homeless person for accommodation and assistance under that Part.
10. Section 193(2) of the Act imposes on a local housing authority a duty to "secure that accommodation is available for occupation by [an] applicant" who is homeless, eligible for assistance and has a priority need, and has not become homeless intentionally. By section 193(5) the authority ceases to be subject to that duty if the applicant, having been informed of the possible consequence of refusal and of his or her right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority is satisfied is suitable for the applicant and the authority notifies the applicant that it regards itself as having discharged its duty under the section.
11. Section 206 of the Act provides as follows, so far as relevant:

"206 Discharge of functions by local housing authorities

(1) A local housing authority may discharge their housing functions under this Part only in the following ways –

(a) by securing that suitable accommodation provided by them is available,

(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 suitable accommodation is available from some other person."

12. The meaning of accommodation available for occupation, for the purposes of Part 7, is set out in section 176 of the Act, which is the critical provision on this appeal. It is as follows:

"176 Meaning of accommodation available for occupation

Accommodation shall be regarded as available for a person's occupation if it is available for occupation by him together with:

(a) any other person who normally resides with him as a member of his family, or

(b) any other person who might reasonably be expected to reside with him.

References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly."

The judgment below

13. The Judge rejected the appellant's argument that, on a proper interpretation of section 176 of the Act, a housing authority cannot lawfully discharge its duty under Part 7 by offering two flats rather than one unit of accommodation. He said that the Guidance issued by the Secretary of State, to which local housing authorities are required by section 182 of the Act to have regard in the exercise of their functions relating to homelessness, indicates that authorities can use hostels. He referred to London Borough of Ealing ex p. Surdonja (1999) 31 HLR 686 and R v Hillingdon LBC ex p. Puhlhofer [1986] AC 486. He said that Scott Baker J in Ex p. Surdonja indicated that he was of the view that local authorities can fulfil their obligations by offering what could be described as split accommodation. The Judge quoted Lord Brightman in Ex p. Puhlhofer, and, in particular, Lord Brightman's observation (in the context of the Housing (Homeless Persons) Act 1977 ("the 1977 Act") at 517E-G that it was for the local authority to decide as a matter of fact whether something was accommodation within the ordinary meaning of that word. The Judge then considered the issue of suitability, and held that suitability had been properly considered by the review officer, and so the appeal on that ground also failed. The Judge rejected the appellant's other complaints based on procedural unfairness and Camden's housing policy. The Judge said that he had no alternative but to dismiss the appeal, albeit with considerable sympathy.

The appeal

14. The appeal to this court is limited to the issue whether, on a proper interpretation of section 176 of the Act, Camden could discharge its duty to secure accommodation for the appellant under Part 7 by providing two self contained flats, with no shared communal living areas. It is common ground that the appellant's father normally resided with her for the purposes of section 176(a). No permission has been sought or granted in relation to the suitability of the offered accommodation.

Discussion

15. I would allow this appeal, essentially for the reasons ably advanced by Mr Martin Hodgson, the appellant's counsel.
16. In a case like the present, where the housing authority accepts that it owes a full housing duty to the applicant under Part 7 of the Act, the authority is required by section 193(2) of the Act to secure that "accommodation is available for occupation by the applicant". Section 176 of the Act defines the meaning of that expression in section 193(2) and elsewhere in Part 7 of the Act. It provides, so far as relevant to this appeal, that "accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with any person who normally resides with him as a member of his family".
17. The accommodation offered by Camden to the appellant comprised two self-contained flats, on the same floor of the building, but a short distance apart, one of which was offered for occupation by the appellant and her sister and the other by her father. On any ordinary use of language, that was not the provision of accommodation which the appellant and her father were to occupy "together with" one another. They would be living close by each other, but separate from one another. No one could reasonably describe them, in such circumstances, as living "together with" one another. That ordinary meaning of the legislative language is reflected in the wording of section 176(a) which refers to a "person who normally resides with" the applicant. It seems reasonable to suppose that concepts of occupation by the applicant "together with" another, and residence of the applicant "with" that other, were intended by Parliament to have a similar meaning. It cannot be said, on any ordinary use of language, that persons living in separate self-contained flats, however close, and not sharing any communal area, are residing together.
18. That reflects the policy of Part 7 of the Act to keep families together. In Din v Wandsworth LBC [1983] 1 AC 657, which concerned the 1977 Act, a statutory predecessor of Part 7 of the Act, Lord Wilberforce said the following at 663G:

"In applying and interpreting this Act there are several important points to bear in mind. First, it is designed for the expressed purpose of bringing families together…"

19. In the same case Lord Fraser said the following at 668D-F:

"One of the main purposes of the Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up."

20. The change in language between section 16 of the 1977 Act and section 176 of the Act is also notable. Section 16 was as follows:

"For purposes of this Act accommodation is only available for a person's occupation if it is available for occupation both by him and by any other person who might reasonably be expected to reside with him and any reference in this Act to securing accommodation for a person's occupation shall be construed accordingly."

21. It is apparent, therefore, that the words "occupation … together with" and "normally resides with" in section 176 were subsequently introduced into the meaning of accommodation available for a person's occupation. They represent a tightening of the statutory language. Provisions formerly in section 16 of the 1977 Act are now to be found in section 176(b) of the Act, but that serves to emphasise, rather than detract from, the conclusion that the new wording is significant in its difference from the former language.
22. In a skilfully presented argument opposing the appeal, Mr Iain Colville, counsel for Camden, advanced the following propositions. First, he emphasised that Part 7 of the Act contains no definition of the term "accommodation" and that what is accommodation for the purposes of Part 7 is a question of fact for the housing authority. He referred, like the Judge, to Ex p Puhlhofer, in which it was held that a single room in a guest house with no cooking or laundry facilities available, and no meals save breakfast, was "accommodation" for the purposes of sections 1 and 4 of the 1977 Act (now sections 175, 190, 192, 193 and 195 of the Act). Lord Brightman said the following at 517/E-G:

"In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word 'accommodation' in section 1 or section 4 of the Act, and none is to be implied. The word 'appropriate' or 'reasonable' is not to be imported. Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of Part II of the Housing Act 1957 or might involve overcrowding within the meaning of Part IV. Those particular statutory criteria are not to be imported into the Homeless Persons Act for any purpose. What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. There are no rules. Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all; it would be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act. What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language."

23. On the same point, Mr Colville referred to R v Brent LBC ex p. Awua [1996] AC 55, in which the issue was whether the applicant was intentionally homeless for the purposes of the homelessness provisions of the Housing Act 1985. Lord Hoffmann, with whom the other members of the Appellate Committee agreed, said at 69H that ""accommodation" ... means a place which can fairly be described as accommodation" and cited Ex p. Pulhofer. Those statements of Lord Brightman in Ex p Puhlhofer and of Lord Hoffmann in Ex p. Awua were accepted as correctly stating the law by Baroness Hale in Birmingham CC v Ali, Moran v Manchester CC [2009] UKHL 36; [2009] 1 WLR 1506 at [56], in a speech with which all the other members of the Appellate Committee agreed.
24. It follows, Mr Colville submitted, that "accommodation", for the purposes of section 176 of the Act, is not restricted to a single dwelling: it could comprise two such residential units as were offered to the appellant in the present case.
25. Mr Colville's second point was that the requirement in section 176 that the accommodation be "available for occupation by [the applicant] together with" the persons identified in section 176(a) and (b) must be interpreted purposively, that is to say, so as to give effect to the policy of Part 7 to keep families together. He submitted that the provision of the accommodation offered by Camden to the appellant in the present case was consistent with that policy. At all events, that was a matter for Camden's judgment, subject to the usual Wednesbury principles.
26. Mr Colville's third point was that, provided the offered accommodation is "accommodation" within the wide meaning of section 176, all other considerations are really facets of the statutory requirement that the accommodation offered must be suitable: sections 193(5), 193(7F) and 206(1). That requires the housing authority to have regard not merely to matters of space and arrangement, but to all the circumstances of the applicant and the applicant's family. There is, therefore, he said, an overlap between the policy objective of keeping families together and the statutory requirement that the accommodation offered by the housing authority must be suitable. He rejected what he described as the appellant's two step test, namely whether the offered accommodation first satisfies a requirement of section 176 to accommodate in one property all the members of the applicant's family normally residing with the applicant, and, secondly, whether the accommodation is suitable for everyone who will live in it.
27. Mr Colville submitted that Camden's approach, that the only test is one of suitability, reflects precisely the approach of Scott Baker J in Ex p. Sudonja, on which the Judge relied. In that case the housing authority responded to a homelessness application by offering interim accommodation for the purposes of section 188 of the Act (pending a decision by the authority as to what (if any) duly it owed under Part 7). The accommodation offered for the applicant, his wife and three children (all under 10 years of age) was a triple room in a hostel in Ealing and a double room in a hostel in Southall. Scott Baker J held that the qualification of suitability of the accommodation is imported into section 188 by virtue of section 206 of the Act. He then went on to consider, under the heading in his judgment "Was the accommodation suitable?" the inter-relationship between sections 188 and 176. He said the following, at page 691:

"There is no doubt that the applicant's wife and three small daughters are people who normally reside with him and are members of his family. It is clear therefore in this case that the respondent was obliged to provide accommodation that was available not only for him but also for his wife and three children. What was offered here was split accommodation with the applicant and one child in one place and his wife and the other two elsewhere, albeit I understand that they would have been less than a mile apart.

[Counsel for the housing authority] argues, one must be realistic and bear in mind that what is suitable on a temporary basis may be rather different from what is suitable on a permanent basis and I can see the force of that argument. But, it seems to me that the combined effect of sections 188 and 176 is that the accommodation provided for the applicant must be sufficient to accommodate his wife and family as well. In my judgment, the obligation is not discharged by providing split accommodation in separate dwellings. It is the policy of the law that families should be kept together; they should be able to live together as a unit. I can well see that the obligation could be discharged by, for example, separate rooms in the same hotel, but not I think in two entirely separate hostels up to a mile apart."

28. Mr Colville relied upon that judgment as support for the various strings of his argument: namely, that separate units of accommodation are capable of being accommodation within section 176 of the Act; the policy of the Act to keep families together is achieved by the requirement that the accommodation is suitable; and that, while suitability is a matter for the discretion and judgment of the housing authority, its decision is subject to challenge on Wednesbury grounds. Mr Colville submitted, in short, that the sole purpose of section 176 is merely to identify the group of people against which the suitability of the accommodation offered is to be assessed in the light of the statutory policy of keeping families together.
29. Mr Colville placed particular reliance on the observation of Scott Baker J in Ex p. Sudonja, in the passage I have quoted, that section 176 of the Act could be satisfied by, for example, separate rooms in the same hotel.
30. Mr Colville also relied on comments of Simon Brown J in R v Lambeth LBC, ex p Ly (1986) 19 HLR 51. In that case a 74 year old refugee, who fled with her family from Vietnam in 1978, became separated from the rest of her family, with whom she had lived until their departure, namely her son, daughter-in law and their eight children. When she arrived in England, where the rest of her family were living in overcrowded accommodation in a hotel, she made a homelessness application to Lambeth. In discharge of its duty, Lambeth offered her accommodation in a four-bedroom flat, intended to accommodate the applicant and her four eldest grandchildren. The flat was approximately two miles from the hotel where the rest of the family continued to live. The applicant contended that the authority was bound under section 16 of the 1977 Act to offer one unit of accommodation for the whole of the family. Her claim for judicial review was dismissed by Simon Brown J. He said the following at pages 55-56:

"I see no reason why the authority should be obliged to close their eyes to the virtual impossibility of providing a single unit for the entire family of eleven. It further seems to me that the authority could properly take into account both that the offer that they made would leave the two parts of the family only some two miles apart, and also that it might well have been possible then to re-accommodate the rest of the family yet closer still.

It would of course, have been entirely different had, for instance, all 11 members of the family arrived together as refugees, never previously having been split, and with all eight children still of an age when they would have been inseparable from their parents. Then it might well have been necessary for the authority, assuming as was the case here that it was impossible for the applicant actually to join the rest of her family in their existing accommodation, to have found accommodation together for all 11, although even then I should have thought it would probably be a sufficient discharge of their duty had they provided that accommodation in, for instance, adjacent flats. But, of course, that is not the position here. This lady has in fact been separated by the force of circumstances from the rest of her family for some years. Her older grandchildren now are of an age where they can be split off from their mother, father and siblings, provided only, no doubt, that they keep in close touch. The grandmother can, in my judgment, perfectly properly be accommodated so as to be with one or other of those sub-divided family units.

It seems to me in the result quite impossible to brand the decision of this authority not to regard all 10 other members of the family as persons who might reasonably be expected to reside with the applicant as perverse; namely, as Lord Brightman made plain in Puhlhofer, as a decision so unreasonable as to verge on an absurdity."

31. Mr Colville also laid emphasis, in support of his submissions, on the limited housing stock and resources of housing authorities. He submitted that it would cause great difficulties for them, and indeed may be practically impossible, if they can only discharge their duties under Part 7 of the Act by offering a single unit of accommodation, however large the applicant's family. The acute pressures on housing authorities in attempting to meet their homelessness duties was graphically reflected in the following comments of Collins J in R v Newham LBC ex p Khan and Hussein (2001) 33 HLR 269 at p. 274:

"What lies behind this case is the appalling problem faced by the Council in finding accommodation for those who are homeless. Its difficulties are compounded by the increasing numbers of asylum seekers who need to be accommodated while their applications are being considered. As Mr Williams, the Homeless Persons Unit manager for the Council has deposed, Newham is "labouring under an accommodation crisis of unparalleled proportions". It is impossible to find even sufficient bed and breakfast accommodation, let alone other more desirable accommodation, in Greater London. The increase in house prices has made leased accommodation more difficult to find."

32. Mr Colville pointed out that the difficulty of resources must also be seen in the context of a duty to provide what is intended to be only temporary accommodation under section 193(2). Indeed, he observed, if the appellant's argument is correct, the obligation to provide a single unit of accommodation for large families extends even to the interim duty under section 188 of the Act to secure accommodation pending a decision as to the duty (if any) owed to the applicant under Part 7. If, however, as Camden contends, the issue is only as to the suitability of the offered accommodation, rather than a prior requirement of section 176 that it be a single unit of accommodation, the temporary nature of the accommodation to be made available under Part 7 of the Act, as well as the limited resources of the housing authority, would be relevant to the way the authority can discharge its duty. In that connection, Camden relies on the following passage in the speech of Baroness Hale in Birmingham City Council v Ali at [47] :

"There are degrees of suitability. What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term ... As we have already pointed out, the suitability of a place can be linked to the time that a person is expected to live there. Suitability for the purpose of section 193(2) does not imply permanence or security of tenure. Accommodation under section 193(2) is another kind of staging post, along the way to permanent accommodation in either the public or private sector."

33. So far as concerns the suitability of the flats offered by Camden in the present case, Mr Colville said that this was examined exhaustively in Camden's review decision. The Judge dismissed the appellant's appeal against Camden's assessment of suitability, and, as I have said, the appellant does not have permission to appeal to this Court on that aspect.
34. Finally, and in any event, Mr Colville did not accept that, on a literal interpretation of section 176 of the Act, the applicant and her father would not be occupying the offered flats "together with" each other, and would not be "residing" with each other. He said they could and would visit each other, and could and would share their facilities to the same, if not greater, extent than a family housed in separate rooms in a hostel or hotel might share facilities such as a kitchen or a bathroom or other communal area.
35. Mr Colville's analysis is impressive, and his arguments were, as I have said, skilfully presented, but I reject them for reasons which can be stated quite briefly. His fundamental submission that section 176 does no more than identify the group of people against which the suitability of the accommodation offered is to be assessed flies in the face of the statutory language used. In particular, it attaches no significance whatever to the words "together with", or indeed to the difference in language from section 16 of the 1977 Act. On Mr Colville's interpretation the words "together with" in section 176 of the Act mean no more than "and". That was, indeed, the language of section 16 of the 1977 Act, and at a time when there was no equivalent of section 176(a) of the Act. The substitution of "together with" for "and" and the introduction of a new category of persons who "normally reside" with the applicant are strong indications that the expression "together with" is to be given its ordinary meaning.
36. As I have said, I do not accept that, on any ordinary use of language, the residents of two self-contained flats, however close are the flats to one another, who do not share any communal living areas, can be said to be residing "with" each other or in occupation of one or other or both of the flats "together with" each other. It makes no difference how often they may visit each other and share each other's company. I do not consider that the observations of Simon Brown J in Ex p. Ly and of Scott Baker J in Ex p. Surdonja, in both cases obiter, support Mr Colville's submissions to the contrary. In Ex p. Ly Simon Brown J was considering the very different wording of section 16 of the 1977 Act. Furthermore, he was concerned with the category of applicant in what is now section 176(b) of the Act, described in statutory language ("who might reasonably be expected to reside with [the applicant])" which gave the housing authority an obvious latitude. In Ex p. Surdonja Scott Baker J expressed the view that accommodation might satisfy the requirements of section 176 of the Act if it comprised "separate rooms in the same hotel". Such an arrangement, however, is quite different from occupation of separate self-contained residential units with no sharing of any living areas.
37. Furthermore, while it is correct that Scott Baker J considered the requirements of section 176 under the heading – "Was the accommodation suitable?"- that was because the issue on which he had to adjudicate, as formulated and presented by the parties, was whether the duty on a local housing authority to provide accommodation under section 188 of the Act requires suitable accommodation, or whether any accommodation is sufficient, and, if the former, whether the accommodation actually offered was in fact suitable. In his actual analysis, however, Scott Baker J expressed the conclusion of law (at page 691) that "the combined effect of sections 188 and 176 is that the accommodation provided for the applicant must be sufficient to accommodate his wife and family as well". That was apparently expressed by him as a minimum legal requirement, and not merely as a facet of suitability on which the housing authority could form its own view.
38. I recognise, without hesitation, the enormous difficulties faced by housing authorities in attempting to discharge their housing duties, including those under Part 7 of the Act. Their shortage of housing stock and limited resources and the scale of the problem of homelessness are well known to be acute. It is obvious that anything which constrains the ability of the authorities to exercise discretion in the management and application of those limited resources and stock will increase the practical difficulties in discharging their duties. The policy underlying the provisions of Part 7 is, however, a matter for Parliament to determine. That policy is to be ascertained in the usual way by a proper interpretation of the statutory language. It is well established and common ground that the policy underlying section 176 is to keep families together. The natural meaning of the language used in section 176 is that the policy is to be achieved by the provision of accommodation in which the applicant can reside "together with" those members of the applicant's family who normally reside with the applicant, and not by the provision of two or more separate self-contained units of accommodation without any sharing of communal living areas. To strain the clear language of section 176 in order to enable housing authorities greater latitude in the management of their limited resources, by reducing the issue solely to one of suitability in the authority's view (subject to Wednesbury principles), would be wrong in principle, as a judicial modification of Parliament's policy.
39. That is compounded by the further difficulty in the present case that, in any event, there is no evidence at all before us as to the seriousness of any practical implications for housing authorities of the appellant's interpretation of section 176. We have no evidence as to how Camden or any other housing authority usually accommodates large families. Camden did in fact secure accommodation for the appellant, her sister and her father, in which they lived together for 5 years before the present dispute. For the reasons I have given, however, I rest my approach to the interpretation of section 176 of the Act on one of principle rather than the absence of such evidence.

Conclusion

40. For the reasons I have given, I would allow this appeal.

LORD JUSTICE WILSON

41. I agree.

LORD JUSTICE JACOB

42. I also agree.