England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Harris Q.C.

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th May 2011

Lord Justice Jackson :

1. This judgment is in six parts, namely:

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.

Part 1. Introduction

2. This is an appeal by Oxford City Council against a decision that it is under a duty to provide accommodation for Mr Darren Bull under Part 7 of the Housing Act 1996. I shall refer to the appellant as "the council". I shall refer to Mr Darren Bull, the respondent, as "Mr Bull". I shall refer to Mr Bull's wife, Tracey, as "Mrs Bull". I shall refer to the Housing Act 1996 as "the 1996 act" or "the Act".
3. This appeal raises two separate issues. The first issue is whether Mr Bull has "priority need for accommodation", as defined in section 189 of the 1996 Act. The second issue is whether Mr Bull became "homeless intentionally", as defined in section 191 of the Act.
4. Part 6 of the 1996 Act provides for the allocation by a local authority of housing accommodation to persons who become tenants, often on a long term basis. Part 7 of the Act imposes duties on a local authority to provide accommodation or services to homeless persons, subject to numerous qualifications and restrictions. I shall now summarise or quote the provisions of Part 7 of the Act which are relevant to the present appeal.
5. Section 175 of the 1996 Act provides:

"(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."

6. Section 176 of the 1996 Act provides:

"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."

7. Section 184 of the 1996 Act provides:

"(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."

8. Section 188(1) of the 1996 Act provides:

"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."

9. Section 189(1) of the 1996 Act provides:

"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."

10. Section 191 of the 1996 Act 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.

(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."

11. Section 193 of the 1996 Act provides:

"(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."

12. Section 202 of the 1996 Act entitles an applicant under Part 7 of the 1996 Act to request a review of any decision with which he or she is dissatisfied. Upon such request the local authority must review their decision. Section 204 of the Act entitles an applicant who is dissatisfied with a review decision to appeal to the county court on any point of law rising from the decision.
13. After these introductory remarks, I must now turn to the facts.
Part 2. The Facts

14. Mr and Mrs Bull have three children, Nikita born on 22^nd January 1993, Kye born on 28^th December 1997 and Kade born on 12^th March 2003. Until March 2009 the whole family lived at 34 Mortimer Road, Oxford. This is a three bedroom house owned by the council, of which Mrs Bull is and was the secure tenant.
15. Unfortunately Mr and Mrs Bull's relationship failed and in June 2009 they separated. Mr Bull went to live in one room in a shared house at 43 Herschel Crescent, Oxford. Mrs Bull and the three children remained living in the former matrimonial home at 34 Mortimer Road.
16. It appears that the children wanted to live with their father, rather than their mother. Allegations have been made that Mrs Bull drank excessively, that she left the care of the younger children to Nikita and that she formed a new relationship of which Nikita disapproved.
17. In August 2009 the three children went to stay with an aunt for a period. Then, on 26^th August 2009, the three children went to their father and asked to live with him. He agreed.
18. Mr Bull's accommodation, being a single room in a shared house, was hopelessly unsuitable for a family of four. Unsurprisingly Mr Bull's landlord gave notice to quit.
19. In those circumstances Mr Bull asked the council for assistance. This request triggered the council's duty under section 184 of the 1996 Act to make inquiries, in order to ascertain whether they owed him a duty under Part 7 of the Act. The council also came under a duty to provide temporary accommodation for Mr Bull while they carried out those enquiries: see section 188 of the 1996 Act.
20. In accordance with their duty under section 188 of the Act, the council provided temporary accommodation at 34 Peregrine Road, Oxford. Mr Bull and his three children moved into that property on 12^th October 2009. Although the three children made their home at 34 Peregrine Road and kept their clothes and possessions there, they regularly went to stay with their mother at 34 Mortimer Road.
21. The council's Housing Department then proceeded to make inquiries concerning Mr Bull and the children pursuant to section 184 of the 1996 Act. They received two statements from Mr Bull and submissions from his solicitors. On 19^th November the Housing Department received an email from the estate manager, stating that Mrs Bull would like the children to come back and live with her permanently. On 11^th December 2009 the Housing Department received a letter from Mrs Bull, stating as follows:

"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."

22. On 18^th December 2009 an Options Officer within the Housing Department issued the council's decision under section 184 of the 1996 Act. This was to the effect that the children did not reside with Mr Bull and so he was not in priority need. Furthermore Mr Bull was intentionally homeless, because he had let the children move into his cramped accommodation at 43 Herschel Road, with the inevitable result that notice to quit was served.
23. Mr Bull requested a review of that decision pursuant to section 202 of the 1996 Act. The council's Principal Housing Facilitator, Mr O'Malley, duly carried out that review and issued his decision on 17^th February 2010. He essentially came to the same conclusions as the Options Officer had reached on 18^th December 2009. I would summarise Mr O'Malley's reasoning in the review decision as follows:

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.

24. Mr Bull was aggrieved by the review decision and appealed to the county court pursuant to section 204 of the 1996 Act. The appeal was heard by HHJ Harris QC on 15^th June 2010 at the Oxford County Court, with judgment being handed down on 14^th July 2010. The judge allowed Mr Bull's appeal. He varied the council's decision so that it declared Mr Bull to be in priority need and not to be homeless intentionally.
25. The judge's reasoning was as follows. The word "reside" should be given its ordinary meaning. Mr and Mrs Bull's three children clearly resided with their father. It was irrational for the council to conclude otherwise. The House of Lords' decision in Holmes-Moorehouse v Richmond Upon Thames Borough Council [2009] UKHL 7; [2009] 1 WLR 413, upon which the council relied, was quite understandable on its facts. It did not, however, provide support for the council's decision in respect of the Bull family. Furthermore Mr Bull cannot be criticised for taking in his own children to live with him on 26^th August 2009. Therefore he did not become homeless intentionally.
26. The council was aggrieved by the decision of HHJ Harris QC. Accordingly it appeals to the Court of Appeal.
Part 3. The Appeal to the Court of Appeal

27. The council now appeals to the Court of Appeal on two grounds. First the council contends that Mr Bull is not in priority need, as defined in section 189 of the 1996 Act, because he is not a person with whom dependent children reside. Secondly, the council contends that Mr Bull became intentionally homeless, as defined in section 191 of the Act, by reason of his deliberate conduct in 2009.
28. The council contends that Mr O'Malley was correct in respect of each of those matters. Accordingly, the judge made errors of law in reversing the review decision on those two points.
29. The relevant statutory provisions have been set out in Part 1 above. I must now turn, therefore, to the first ground of appeal.
Part 4. The First Ground of Appeal: Priority Need

30. Mr O'Malley, the review officer, concluded that Nikita, Kye and Kade did not "reside" with their father. Therefore Mr Bull did not fall within any of the categories of priority need set out in section 189 of the 1996 Act. The judge concluded that the three children did "reside" with their father. Therefore Mr Bull had a priority need for accommodation, because he fell within section 189(1)(b) of the Act.
31. Two authorities are of principal relevance to this issue. They are Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57; [2002] 1 AC 547 and Holmes-Moorehouse v Richmond Upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413.
32. In Mohamed the applicant was a refugee from Somalia who had lost contact with his wife. The wife arrived in England in 1994 and went to live in Ealing. In January 1998 the applicant arrived in England and went to live as a guest of a friend in Hammersmith. In April 1998, the applicant and his wife having been reunited, they applied to the local housing authority in Hammersmith for assistance with accommodation and were placed in interim accommodation in the authority's district pending a decision. An issue arose as to which local authority had responsibility to provide accommodation for the applicant and his wife. The House of Lords held that the responsible authority was Hammersmith. The House held that any occupation by the applicant of interim accommodation within the authority's district prior to the date of review could constitute normal residence for the purpose of section 199(1)(a) of the 1996 Act and so be taken into account as evidence of a local connection. Lord Slynn delivered the only speech, with which Lord Steyn, Lord Hoffmann, Lord Hutton and Lord Hobhouse agreed. Lord Slynn said:

"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 [2001] 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."

33. In Holmes-Moorehouse the claimant and his partner had three children under the age of 16. In uncontested family proceedings the judge made a shared residence order and ordered the claimant to leave the family home. The shared residence order provided that the children should spend alternate weeks and half of the school holidays with each parent. The claimant applied to the local authority for accommodation as a homeless person under the 1996 Act, contending that he was in priority need since dependent children "might reasonably be expected to reside" with him within the meaning of section 189(1)(b) of the Act. The local authority rejected the claimant's application. The county court judge dismissed the claimant's appeal, but the decision of the county court was reversed by the Court of Appeal. The House of Lords allowed the local authority's appeal. The House held that when a court determined a question under the Children Act 1989 with respect to the upbringing of a child, the paramount consideration was the child's welfare. However, the question for a local housing authority under Part 7 of the 1996 Act was whether it should secure that accommodation was provided for a homeless person with whom dependent children might reasonably be expected to reside; that in exercising its decision making powers under the 1996 Act the housing authority was entitled to take into account that housing was a scarce resource, and to have regard to the social purposes of the Act, the claims of others and the scale of its own responsibilities. Lord Hoffmann gave the principal speech, with which Lord Scott, Lord Walker, Baroness Hale and Lord Neuberger agreed. Lord Hoffmann said:

"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."

34. In his concurring speech Lord Neuberger gave helpful guidance as to the proper approach of courts to review decisions under Part 7 of the 1996 Act. Lord Neuberger said that a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used or search for inconsistencies. Nevertheless the court should not approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.
35. Let me now turn to the issue in the present case. The date upon which the question of priority need must be considered is 17^th February 2010, the date of the review decision.
36. The question then arises whether the children's residence at 34 Peregrine Road up to February 2010 should be taken into account. Ms Kerry Bretherton, relying upon the House of Lords' decision in Mohamed, submits that it should be taken into account. She points out that "local connection" in section 184 is defined by reference to residence: see section 199 of the 1996 Act. The word "reside" must be construed in the same way in sections 189 and 199 of the Act. Ms Bretherton submits that there should be a cohesive approach to the interpretation of Part 7 of the Act.
37. Mr Andrew Arden QC, for the council, submits that the children's period of residence at 34 Peregrine Road should not be taken into account. It would be illogical if the council's performance of its statutory duty under section 188 of the 1996 Act caused it to come under a duty to provide long term accommodation which would not otherwise arise. Mr Arden submits (with some diffidence) that the court should interpret "reside" differently in sections 189 and 199 of the Act.
38. I see logical force in Mr Arden's argument, but I do not think that this court can accept it. The House of Lords held in Mohamed that a period of residence in temporary accommodation provided under section 188 of the Act should be taken into account for the purpose of determining under section 199 whether Hammersmith had come under a duty to provide accommodation under section 193. In my view the same approach should be adopted to determining questions of priority need under section 189. Therefore I must take into account the children's period of residence at 34 Peregrine Road up to February 2010.
39. Adopting that approach, I have no doubt that the judge was correct and the review officer was wrong on the question of residence. Whatever may have been the position at 43 Herschel Road, once Mr Bull and the children moved to 34 Peregrine Road that was where the children resided. It was where they kept their clothes and possessions. It was their main home, from which they went to school. It is quite true that the children went to stay with their mother regularly, but that does not detract from the fact that they resided at their father's house. Indeed Mrs Bull said this in the opening sentence of her letter to the council received on 11^th December 2009.
40. I agree with the judge that Holmes-Moorehouse does not assist the council on this issue. In Holmes-Moorehouse the children resided with their mother. The question was whether the local authority should provide a second family home to the father so that the children could reside with him as well. Quite understandably the House of Lords said no. The Court of Appeal in that case had attached too much weight to the effect of a shared residence order which was made by consent in family proceedings.
41. Section 189(1)(b) of the 1996 Act has two limbs, namely "reside" and "might reasonably be expected to reside". The second limb was in issue in Holmes-Moorehouse. With the benefit of Lord Hoffmann's speech in that case, it seems obvious that questions of resources must be relevant in determining what might reasonably be expected under the second limb. In the present case, however, the first limb is in issue. The question is where, as a matter of fact, the children resided in February 2010. In answering that question the scarcity of the council's resources cannot be a relevant consideration.
42. Let me now draw the threads together. For the reasons set out above, the House of Lords' decision in Holmes-Moorehouse cannot be relied upon to justify the review officer's decision on residence in the present case. In my view, the children were clearly residing with their father at the material time. The judge was correct to reverse the review officer's decision on this issue.
43. I would therefore dismiss the first ground of the council's appeal. I must now turn to the second ground.
Part 5. The Second Ground of Appeal: Intentional Homelessness

44. The second issue appears to have been dealt with in the county court more briefly than the first issue. Consequently the judge dealt with this matter quite shortly in his judgment. At paragraph 16 he said:

"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."

45. Mr Arden criticises that part of the judgment as being inconsistent with the findings of fact made by the review officer. In my view that criticism is well founded.
46. For present purposes the most important part of the review decision is paragraph 2.3, to which I have briefly referred in Part 2 above. The first part of paragraph 2.3 reads as follows:

"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."

47. After that passage Mr O'Malley goes on to cite further evidence to support his conclusion that Mrs Bull was well able to look after the three children properly.
48. I must approach this passage in accordance with the guidance given by Lord Neuberger in Holmes-Moorehouse, as summarised in Part 4 above. Mr O'Malley had clearly found that there was no necessity for Mr Bull to take the children to live with him in and after August 2009. Furthermore Mr O'Malley was quite entitled to come to that conclusion on the basis of the evidence that he and his colleagues had gathered.
49. There is no error of law in Mr O'Malley's finding of fact on this issue. Accordingly, the judge was not entitled to substitute a different finding of fact, as he did in paragraph 16 of his judgment.
50. Ms Bretherton has developed a number of ingenious arguments concerning the interrelationship between sections 175, 176 and 191 of the 1996 Act. She points out that the room at 43 Herschel Road was not suitable for a family of four. Therefore section 175(3) of the Act was triggered on 26^th August 2009. It was not reasonable for Mr Bull to occupy that room with his children. Accordingly Mr Bull should not be treated as "having" that accommodation. Ms Bretherton submits by the same reasoning that that accommodation "ceased to be available" by operation of section 176. Since that accommodation was no longer "available", Mr Bull's conduct in precipitating the notice to quit could not fall within the wording of section 191(1). He could become not intentionally homeless from accommodation which was not "available" to him.
51. In support of her submissions Ms Bretherton relies, in particular, upon two authorities, namely R v Hillingdon London Borough Council, ex parte Islam [1983] AC 688 and Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506. In Islam the applicant came to England from Bangladesh. He obtained work here and lived in a rented room which he shared with another man. Subsequently his wife and children arrived and they moved into the premises where the applicant was living. The family was evicted because the accommodation was entirely unsuitable for them. The applicant applied to his local authority for accommodation pursuant to the Housing (Homeless Persons) Act 1977 ("the 1977 Act"). The 1977 Act was the predecessor of Part 7 of the 1996 Act. Sections 16 and 17 of the 1977 Act provided as follows:

Section 16:

"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…"

Section 17:

"…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.

52. The House of Lords held that the applicant's original accommodation was not "available" for him within the meaning of section 16 of the 1977 Act, because his family could not reasonably be expected to live with him there.
53. In Birmingham City Council six appeals were heard together by applicants for accommodation under Part 7 of the 1996 Act. Each applicant had a large family which was being housed in accommodation of insufficient size. The approach of the local authority in each case was to accept that the family was homeless because of overcrowding, but to leave the family where they were until suitable permanent accommodation could be found. The House of Lords held that in one case the authority had discharged its duty under section 193(2) of the 1996 Act and in another case it had not. The details of the individual cases do not matter. What is important is the guidance which the House of Lords gave about the interpretation of sections 175(3) and 191(1). Baroness Hale gave the principal speech, with which Lord Hope, Lord Scott, Lord Walker and Lord Neuberger agreed. At paragraphs 34-37 Baroness Hale explained that sections 175(3) and 191(1) were looking to the future as well as the present. The fact that it was reasonable for the claimant and his family to remain where they were for the time being did not prevent the family being classified as homeless. Property which it is "reasonable" for an applicant to occupy for a short time does not necessarily meet the requirement of section 175(3) of the Act. Nor is such property necessarily "available for his occupation" within the meaning of section 191(1).
54. I can readily see the logic of the reasoning and the decisions in both Islam and Birmingham City Council. Both cases were concerned with families which existed as units. In the case of Islam, the applicant's family had nowhere to live apart from the accommodation which the applicant was currently renting. So the family had to go there. That accommodation was completely unsuitable for the applicant and those reasonably expected to reside with him.
55. The present case is different. The three children had a home at 34 Mortimer Road where they could and should have lived. There was no need for them all to move into one room at 43 Herschel Road with their father. On 26^th August 2009 the children were not living with their father and they were not reasonably expected to do so. In those circumstances Ms Bretherton's argument based on sections 175, 176 and 191 of the 1996 Act falls to the ground. It was reasonable for Mr Bull to continue to occupy 43 Herschel Road. That property was "available" within the meaning of section 176. By his own deliberate conduct Mr Bull created a situation in which he was forced to leave that property. There is no parallel between Islam and the present case.
56. Turning to Birmingham City Council, I readily accept that sections 175(3) and 191(1) are looking towards the future as well as the present. For this purpose it is necessary to consider not only the position on 26^th August 2009, but also the position over the following weeks and months. Looked at from that perspective (whatever falling out there may have been between Nikita and her mother in August 2009) it was reasonable for the three children to remain living with their mother. It was not reasonable for them to move in with their father, who had nowhere to accommodate them.
57. Let me now draw the threads together. On and after 26^th August 2009 Mr Bull had perfectly satisfactory accommodation at 43 Herschel Road. His three children did not reside with him and it was not reasonable to expect that they would do so. They had a home with their mother and were properly accommodated there. Mr Bull's own deliberate conduct led to his enforced departure from 43 Herschel Road. On this issue, therefore, the review officer was correct and the judge was wrong to reverse the review decision. The council therefore succeeds on the second ground of appeal.
Part 6. Conclusion

58. The final outcome of this appeal must be that Mr Bull is intentionally homeless. Accordingly the council do not owe to him the full duty set out in section 193 of the 1996 Act.
59. That result is undoubtedly unfortunate for Mr Bull and possibly also for his children. On the other hand, this outcome avoids the anomalous situation whereby a hard pressed local authority with a shortage of housing stock is forced to provide two family sized homes for the same family.
60. Let me now draw matters to a conclusion. For the reasons set out in Part 4 above I would dismiss the first ground of appeal. For the reasons set out in Part 5 above I would uphold the second ground of appeal. Accordingly, if my Lords agree, this appeal is allowed and the review officer's decision on the issue of intentional homelessness is reinstated.

Lord Justice Tomlinson: I agree with both judgments

Lord Justice Pill:
 


61. I agree that the appeal should be allowed. I agree with the conclusions of Jackson LJ on each of the grounds of appeal. I add comment on the issue on which the appeal is successful, that of intentional homelessness.
62. For Mr Bull, Ms Bretherton relied on the argument successful in the House of Lords in re Islam [1983] 1 AC 688. Sections 16 and 17 of the 1977 Act are in material respects identical to the current statutory arrangements in section 175, 176 and 179 of the 1996 Act set out by Jackson LJ in his judgment. Ms Bretherton submitted that the single room occupied by Mr Bull was not available for occupation by him together with any other person who might reasonably be expected to reside with him (his three children) within the meaning of those words in section 176 of the 1996 Act. That being so, when he was evicted by his landlord from that room, he did not cease to occupy accommodation which it would have been reasonable for him to continue to occupy, within the meaning of those words in section 191(1) of the 1996 Act.
63. That was different from the position of Mr Islam. He was an ordinary resident in the United Kingdom with indefinite leave to remain under the provisions of the Immigration Act 1971. He applied for entry clearance for his wife and children and, in February 1980, an entry visa, valid for 6 months, was endorsed on his wife's passport entitling her and the children to join Mr Islam as dependents of a person already settled in the United Kingdom. Because he was settled here before 1993, he did not have to show that he could accommodate them.
64. After a short time in a single room, the family was summarily evicted and Mr Islam applied to the housing authority for accommodation as a homeless person. The House of Lords reversed the housing authority's finding that Mr Islam had "become homeless intentionally, having deliberately arranged for his wife and children to leave accommodation which it would have been reasonable for them to continue to occupy".
65. Lord Wilberforce, at page 707B, stated that "it was important to appreciate the 'particularity' of the facts". He accepted the reasoning of Ackner LJ, dissenting in the Court of Appeal, and added, at page 708G:

"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."

66. In the course of his analysis, Ackner LJ, at page 698D, had stated:

"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."

67. Lord Lowry stated, at page 711E-F:

"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."

68. The present facts are different. The relationship between Mr and Mrs Bull failed. Mr Bull went to live in one room and the three children remained in the former matrimonial home, which was suitable accommodation for the family. The children moved to reside with Mr Bull, in circumstances described by Jackson LJ. The children were residing with him, within the meaning of section 176, because he had accepted them into the single room but adequate family accommodation was available for them with their mother. In contrast, there was in Islam no such family accommodation available in the United Kingdom. On current immigration procedures, the Islam situation would not normally arise because the availability of suitable accommodation has to be established before a visa is issued.
69. On the facts, I agree with Jackson LJ's reasoning at paragraphs 55 and 57 to 59. The council's review decision dated 17 February 2010 was very detailed. Concerns that had been expressed about Mrs Bull's parenting skills were not accepted. The children stayed with her every second weekend and one night in the week. She wants the children to live with her. "It was patently obvious that accommodating your [Mr Bull's] children was a completely untenable position to place both yourself and them in". "Homelessness was the reasonably foreseeable consequence of the deliberate act of overcrowding your last settled accommodation by taking in your children which was clearly an unsustainable situation. A loss of this accommodation is the root cause of your current homelessness". The council was plainly of the view that it was reasonable for the children to remain in the former matrimonial home with their mother.
70. The judge was in my view in error when he stated, at paragraph 16, that Mr Bull "can hardly be criticised for taking in his own children in the circumstances and he should not have been found to be intentionally homeless". I too would allow the appeal on the ground that Mr Bull is intentionally homeless. He deliberately allowed the children to live with him in a single room knowing that he would thereby be evicted from the premises.
71. I add that the council's reference, in the review, to "the scarcity of resources available to the housing authority" was not misplaced. In Holmes-Moorehouse v Richmond-upon-Thames LBC [2009] UKHL 7; [2009] 1 WLR 413, Lord Hoffmann, at paragraph 16, referred to priorities in the context of the expression "a person with whom dependent children . . . might reasonably be expected to reside" in section 189(1)(b) of the 1996 Act. He stated:

"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.

72. The appeal is allowed.