COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Harris Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE TOMLINSON
| OXFORD CITY COUNCIL
|- and -
Ms Kerry Bretherton and Mr Andrew Lane (instructed by Turpin Miller Solicitors) for the Respondent
Hearing date: Wednesday 13th April 2011
Crown Copyright ©
Lord Justice Jackson :
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Appeal to the Court of Appeal,
Part 4. The First Ground of Appeal: Priority Need,
Part 5. The Second Ground of Appeal: Intentional Homelessness,
Part 6. Conclusion.
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
(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."
"Accommodation shall be regarded as available for a person's occupation only 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."
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
"The following have a priority need for accommodation –
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."
"(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.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate."
"(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) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
"I am writing regarding my three children, Nikita 16, Kaye 11 and Kade 6. They are now residing with their father Darren Bull at 34 Peregrine Road, BBLeys, OX4 6TJ. Myself and their father Mr Bull are in the process of sorting out visitation, we plan for the children to stay Friday till Sunday overnight one week and the next week they will have one overnight stay. I also have in writing that Mr Bull and I share parental responsibility, I hope this letter helps."
i) The three children "resided" with Mrs Bull not Mr Bull. The fact that the children were currently sharing with their father temporary accommodation provided under section 188 of the 1996 Act did not amount to "residence" at that address.
ii) After investigation Mr O'Malley did not accept the criticisms of Mrs Bull's conduct and he saw no reason why the children should not live with their mother. He gave cogent reasons for reaching this conclusion in paragraph 2.3 of the review decision.
iii) Although the children's wishes as to where they should live were relevant, they were not an overriding factor.
iv) Mr Bull's work commitments made it impossible for him to provide care for the children in the mornings before school and during school holidays.
v) It was not reasonable for the council to provide two separate houses for the Bull family. The council had a long waiting list, including hundreds of households requiring family accommodation.
vi) Mr Bull was not a vulnerable person.
vii) Mr Bull was intentionally homeless. This was because he allowed the children to live at 43 Herschel Road, thus making eviction inevitable. It was obvious that an adult, a sixteen year old girl and two younger boys could not remain living in one room.
viii) Therefore the council owed no duty to provide accommodation for Mr Bull pursuant to section 193 of the 1996 Act.
"18. It is clear that words like "ordinary residence" and "normal residence" may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter" but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such.
20. The appellant authority contends that interim accommodation cannot lead to the creation of a local connection attributable to normal residence even "if a person is in interim accommodation for an extensive period, e.g. years" though it recognises that local connection through other factors specified (e.g. special circumstances) can arise during the occupation of interim accommodation. The authority says that to allow such interim accommodation to count as normal residence defeats the purpose intended by the Act. Such accommodation was not intended to give an applicant the chance to build up a local connection; to take such interim accommodation into account benefits those whose cases demand long inquiry to the disadvantage of those whose cases can be dealt with quickly.
21. I agree with Henry LJ  WB 97, 109, para 45 that although there is a redistributive purpose to the Act, it has to be read with the other statutory purpose of providing for people to stay in a borough with which they have established a local connection and that there is no overriding reason or principle why interim accommodation should not count as normal residence for that purpose."
"14. The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father. In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves. It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children. But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.
16. I am afraid that I cannot agree with this proposition, [vis the proposition that scarcity of resources should not be taken into account] whether as a matter of law, logic or social policy. There seems to me no reason in logic why the fact that Parliament has made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy. It does not mean that a housing authority can say that it does not have the resources to comply with its obligations under the Act. Parliament has placed upon it the duty to house the homeless and has specified the priorities it should apply. But so far as the criteria for those priorities involve questions of judgment, it must surely take into account the overall purpose of the scheme."
"As to the question whether the father had become homeless intentionally, the council's position was that by taking the children into his room, he brought about a situation in which his landlord would require him and them to leave." [the judge then read out section 191(1) of the 1996 act] "It would not have been reasonable for him to continue to occupy the room once his children were living there. He can hardly be criticised for taking in his own children in the circumstances and he should not have been found to be intentionally homeless."
"You have suggested that the children have expressed concern about their mother abusing alcohol and this is the reason they wanted to move in with you. I see that all three children repeated this, according to the Housing Options officer's notes, particularly the 6 year old, which suggests to me that he (and the other children) may have been simply repeating what they heard you say. No objective evidence has been provided to show that it is the case.
However their mother has said that the reason they asked to move in with you is that they disapproved of her new boyfriend and found the fact that she had a new partner hard to deal with. It seems to me on balance, that Mrs Bull's account is more plausible because on checking with social services the investigating Housing Options officer found that there were no concerns over Mrs Bulls parenting skills, and because if alcohol misuse (affecting her ability to provide for the physical and emotional needs of the children) was the reason then it would seem irrational for you to let the children reside with her for extended reasons or even for the children to return at all.
Yet they do return to live with their mother for part of the week and as noted you have said that you have no objection to this increasing."
"For the 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…"
"…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."
It can be seen that section 16 of the 1977 Act is similar to section 176 of the 1996 Act, but it contains nothing similar to the first limb of section 176. Section 17 of the 1977 Act is similar to section 191 of the 1996 Act.
Lord Justice Tomlinson: I agree with both judgments
Lord Justice Pill:
"The appellant was 'homeless': he was entitled to priority: he never had any 'available accommodation' within the meaning of section 16 which he could give up: section 17 could not be applied to his case. There is no answer to his claim."
"Unless the applicant finds accommodation to house himself and his family before they come to this country, then it is said he is intentionally making himself and his family homeless. But it is not suggested that he failed to take any steps reasonably open to him to find such accommodation."
"And yet it is clear from the inadequacy of the [single room] accommodation . . . that it was not available for occupation by the appellant and his family."
Lord Lowry added, at page 715F:
"The inescapable flaw in [the local authority's] theory is that, because his family were residing with him, the [single room] accommodation was (by reference to sections 16 and 17) never 'available', nor, of course, would it have been reasonable for the appellant (scilicet the family unit) to continue to occupy it: thus section 17(1) never came into play."
"I am afraid that I cannot agree with this proposition, whether as a matter of law, logic or social policy. There seems to me no reason in logic why the fact that Parliament has made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy. It does not mean that a housing authority can say that it does not have the resources to comply with its obligations under the Act. Parliament has placed upon it the duty to house the homeless and has specified the priorities it should apply. But so far as the criteria for those priorities involve questions of judgment, it must surely take into account the overall purpose of the scheme."
The context in the present case is different but that approach could reasonably be followed by the council when considering whether the children might reasonably be expected to live with their mother and when deciding that, on the facts, it was not incumbent on the council to provide the family with two homes each capable of accommodating a parent and three children.