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LONDON BOROUGH OF NEWHAM Ex parte MANIK BIBI And between R v. LONDON BOROUGH OF NEWHAM Ex parte ATAYA AL-NASHED, R v. [1996] EWHC Admin 4 (18th January, 1996)

CO/1748/0159/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

Winchester Crown Court
Date: 28^th July 2000

B e f o r e:
MR JUSTICE TURNER
REGINA
-V-
LONDON BOROUGH OF NEWHAM
Ex parte MANIK BIBI

And between
REGINA
-V-
LONDON BOROUGH OF NEWHAM
Ex parte ATAYA AL-NASHED
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
MR. DAVID MATTHIAS (instructed by Newham Borough Council) appeared for the Respondent
MR. JANUARY LUBA (instructed by Miles & Partners) appeared for the 1^st Applicant
MR. CHRISTOPHER MAYNARD (instructed by Morgan Hall) appeared for the 2^nd Applicant

J U D G M E N T
As Approved by the Court
Crown Copyright

TURNER J
1. These two applications raise the same point in relation to the discharge by a housing authority of its duty to house the unintentionally homeless under the provisions of section 65(2) of the Housing Act 1985. The section provides that:
Where a housing authority are satisfied that an applicant has priority need and are not satisfied that he is homeless intentionally, they shall, unless they notify another housing authority in accordance with section 67 (referral on there grounds of local connection), secure that accommodation becomes available for is occupation.
The problem arises out of the fact that in each of the present cases, believing that its duty under the section was to provide permanent secure accommodation to both of the applicants, the respondent authority stated that it would provide such a home as soon as it could. Neither applicant has yet been provided with permanent housing.
2. The offers made to both applicants in these cases were made by the respondents before the House of Lords had clarified the nature of the duty which such an authority owed under section 65(2). It was accepted at the Bar that before the case of Regina v. Brent LBC ex p Awua [1996] 1 AC 55 the common understanding among housing authorities was that in order to comply with their section 65(2) duty, if they were not immediately able to provide an applicant with permanent accommodation, housing authorities were entitled to adopt a staged approach to the fulfilment of their duties. The facts of these two cases may be extreme, but they indicate clearly the difficulties which present themselves to local authorities due to a clarification in the law which has had the effect of declaring what the law on the topic 'has always been' but in a manner which was contrary to that which they had previously believed.
Al-Nashed
3. The family arrived in the United Kingdom on 23 September 1992 and applied for asylum on the same day. After enjoying the benefits of assistance provided by the Refugee Arrivals Project at Heathrow, the applicant and his family were presented to the respondent housing authority on 12 October 1992. The respondents agreed to provide temporary accommodation for the family at Courtney Hotel, E12 while the authority considered the applicant's case. On 26 October, the applicant was accepted as a homeless person with priority need who was not intentionally homeless and, at the request of the respondents, was granted an assured shorthold tenancy of 58 Atkinson Road E16 by London and Quadrant Housing Trust ("L & Q"). Due to racial harassment which took place in the vicinity of that property, the applicant was moved by the same landlords to 323 Prince Regent Lane E16 in respect of which in July 1993 a further shorthold tenancy of 6 months was granted.
4. Further racial harassment occurred with the result that the applicant again requested a transfer. The housing association had no suitable accommodation at first and referred him back to the housing authority. The applicant was eventually found other accommodation at 56 Lincoln Road E7 in about May or June 1994. This was a property owned by the same housing association as before, but it was too small for the needs of the applicant and his family and was also situated in an area which exhibited racist attitudes. While there, the applicant was made an offer of permanent accommodation, but this too proved to be unsuitable for his needs. The respondents accepted this. After a prolonged period during which no progress seems to have been made, the applicant sought assistance from a local councillor. Whether as the result of that intervention, or otherwise, the housing authority stated once more that it would provide permanent accommodation in a five bedroom house. Because he was making no progress in exchanging his then accommodation, which was too small, the applicant attempted to appeal against its allocation, but was informed that he was too late to proceed by that means. Matters continued to drag on.
5. On 18 January 1996, the respondents stated that they would be providing the applicant with a permanent residence which would be suitable for his needs. However, in late 1996, the applicant was moved to yet further temporary accommodation at 17 Albany Road E12 under another assured shorthold lease which expired in March 1997. It is the respondents' contention that it was this move which effectively discharged the duty which they had admittedly owed to the applicant under section 65(2).
6. On 4 September 1997, the applicant's seventh son was born which, including his wife and daughter, made the family a total of ten persons. The housing authority was informed. In April 1998, the applicant complained to the housing authority about the less than satisfactory state of his accommodation. The authority passed the complaint onto the housing association which had already commenced possession proceedings. This step had become necessary because L & Q needed to regain possession of their property and not by reason of any default on the applicant's behalf. On 22, July the possession order was served on the applicant on the very day upon which it was due take effect. The applicant was reassured by the housing authority as to his position. Nevertheless, on 14 September he was evicted and forced to apply to the homeless persons unit for assistance. There he was notified that he and his family had been allocated to a bed and breakfast hotel in Brighton. The applicant refused to go there and for a short period managed to persuade a friend to allow the whole family to sleep on the floor in a flat which was occupied by a friend of his.
7. On 21 September, the applicant was allocated to bed and breakfast accommodation in Earls Court. His children were of course being educated in East London, the area where the family had settled after their arrival in the United Kingdom. The applicant then consulted solicitors. In November, the applicant was notified that he had reached the top of one of the authority's housing lists and was reaching an advanced position on others. In December 1998, the Earls Court accommodation was cancelled by the respondents and the applicant was then found accommodation by them in Tottenham. On 12 February 1999 the applicant was notified that he had reached the top of the Authority's housing lists in all areas, but had still to receive an offer of permanent accommodation which, it is his case, that he had been promised so long before as 1994.
8. On 18 June, 1999 the applicant was given permission to apply for judicial review of the housing authority's failure to provide him with permanent accommodation in accordance with its promise made in 1994.
9. On 29 June the applicant was provided with a, yet further, unit of temporary accommodation, this time by a different housing association at 54 Shelley Avenue E12. Again it was a shorthold lease for 6 months. By this time the applicant had lost his place at the head of the respondents' housing list and has, since, sunk even lower. It is the case for the applicant that the respondents had failed to comply with its own promises
10. It was accepted on behalf of the respondents that until the decision in Awua, they had been proceeding on the basis that their duty under the Act of 1985 was to secure permanent accommodation for the applicant which would be suitable for the needs of his family. In other words that if they had not considered that they had not discharged their duty under section 65(2) until suitable permanent accommodation had been secured for the applicant.
Manik Bibi
11. In March 1991, the respondents accepted that they owed the applicant a duty under section 65(2) of the Housing Act 1985. On 31 May of that year the housing authority wrote to the applicant stating that they would "offer a permanent home as soon as we can but it may take as long as 18 months". Temporary accommodation was provided by the authority at 404 Romford Road E7, pursuant to its duty under section 63 of the Act; see below. In September 1993, the authority arranged further temporary accommodation for the applicant at 194 Esk Road E7. During 1994-5 offers of permanent accommodation, which proved to be unsuitable, were made. In 1995, the respondents set the criteria for what they considered would be suitable accommodation for the applicant and her family :
Ground floor; any lifted, no internal stairs; No unlifted; Ground floor; Second floor lifted, no steps.
12. On 16 October 1995 the applicant was nominated for further temporary accommodation by way of an assured shorthold lease in premises of which the L & Q were the landlords. The property was at 34 Jade Close E6.
13. On 10 March 1997, the applicant was offered council accommodation at 6 Scott House E13. This was a second floor flat with two bedrooms but distant car parking. The applicant rejected this property as unsuitable, a refusal which was treated by the respondents as unreasonable and, therefore, as a discharge of their obligations towards the applicant as a homeless person. At some stage the respondents instructed L & Q to repossess 34 Jade Close. L & Q obtained an order for possession of this property on 17 July 1998. The warrant for possession was issued on 1^st September. In the meantime the applicant obtained further evidence of the physical disability which affected one of the family members. The respondents, through their homeless persons unit, failed to assess this evidence.
14. On 14 May 1998, the applicant's solicitors wrote to the respondents indicating, among other things, that the respondents had not commented on the fresh medical evidence relating to disability, as above. On 10 August, the applicant's solicitors complained to the respondents about their failure to give consideration to this medical evidence. It appears from an internal note on the respondents' file which has been disclosed, that they had, (1) agreed to make a fresh offer of accommodation; (2) they had called to L & Q to put off eviction; (3) L&Q required written notice to confirm this; and (4) sent instructions to reclassify the applicant's refusal as "reasonable". This led to a further internal note which stated that the applicant could receive another offer of accommodation under Part III of the Act of 1985.
15. On 4 November 1998, the applicant was offered a first floor flat which she refused on the grounds that her disabled daughter would be unable to obtain satisfactory access to the flat for a number of reasons which she specified The respondents' categorised this refusal as unreasonable and the applicant appealed against this decision. On 17 November, the respondent claimed that they had discharged their duties under part III of the Act.
16. In response to the letter before action, the respondents set out what was their case, thus
(The applicant) applied for assistance on 13.3.91, and her application has been dealt with under Housing Act 1985 Part III. At one time it was believed that duties under that Act could only be discharged by the offer of a secure tenancy. Accordingly, the Council placed accepted applicants into temporary accommodation until such time as a tenancy in social housing could be granted. Since R v. L.B. Brent, ex parte Awua, it has been accepted that duties under that Act were in fact discharged by any offer of suitable accommodation. This means that in this case duties were discharged by the offer of 34 Jade Close. [The property occupied by the applicant since 1995]
A possession order has been obtained by (L & Q), on the instructions of the Council. It has been made clear to (the applicant) that once she is made a reasonable offer of accommodation, her temporary accommodation would be terminated. As a person threatened with homelessness, (the applicant) may make a further application as a homeless person.
17. It can be seen that, although in a slightly less extreme form, the point which arises in this case is the same as that as in Al-Nashed. It can be formulated thus: The respondents having erroneously believed that before the decision in Awua, in the House of Lords, they were under an obligation to provide permanent accommodation to those to whom they owed a duty under Part III of the Act of 1985 and conducted themselves in that manner until they appreciated that the original offer of (temporary) accommodation might have constituted discharge of their duty. Does this leave persons who were unintentionally homeless for a period in the one case of nine, and the other of five, years without a remedy from the authority which had said that they would provide each of them with permanent accommodation? Or does their state as unintentionally homeless persons in priority need continue each time that the temporary accommodation ceases to be available to them and that they must make fresh applications successively under the current statutory provisions (Act of 1996)?
The statutory regime
18. Section 58 of the Act defines the concept of homelessness as well as that of being threatened with homelessness. It is probably relevant to notice to subsections (2A) and (2B) of that section which provide that a person shall not be treated as having accommodation unless it would be reasonable for him to continue to occupy it and in determining whether it would be reasonable, regard may be had to the general circumstances prevailing in relation to housing in the district. Section 62 makes it obligatory on a local housing authority to make enquiries of a person who appears to be homeless "to satisfy themselves whether he is homeless or threatened with homelessness". The authority has then to determine whether the applicant has priority need and became homeless intentionally. Under section 63, the authority has a duty to secure that accommodation is made available to the applicant who is homeless and has priority need pending the result of its enquiries instituted under section 62. Section 64 requires that the decision under section 63 shall be notified to the applicant. Then section 65 (1) sets out the duties which the authority owes in a case where the applicant is homeless, (2) in priority need and has not become homeless intentionally. The text of section 65(2) has already been set out above. Section 69 makes provision for what the authority is required to do in the event that section 65 applies and provides that the duty, to secure that accommodation becomes available to an applicant, may be performed by:-
(a) making available suitable accommodation held by them under Part II (provision of housing) or any enactment, [Council Housing]; or
(b) by securing that he obtains suitable accommodation from some other person, [Housing Association or private landlord]; or
(c) by giving him such advice and assistance as will secure that he obtains suitable accommodation from some other person
and in determining whether accommodation is suitable they shall have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act.
By sub-section (2) a local authority is empowered to purchase the provision of accommodation from other sources than its own. Section 71 provides that an authority shall have regard to such guidance in regard to the exercise of its functions as the Secretary of State may give from time to time.
19. One of the problems which was highlighted in the case of Awua was that the guidance given by the Secretary of State proved not to have been in accordance with the Act. The other problem, with which Awua also dealt, was that accommodation which was "secured" in fulfilling the duty under section 65(2) need be neither settled nor permanent. This has the added consequence that temporary accommodation did not mean that an applicant "could not reasonably be expected to continue to occupy it" for the purposes of section 60. There is authority binding on this court that there is no element of temporality imported into the word "suitable" where it appears in section 69(2); see Awua and Regina v. Wandsworth London Borough Council ex parte Mansoor [1997] QB 953. This last was a decision of the then Master of the Rolls, Sir Thomas Bingham, Evans and Ward LJJ. Although Evans LJ concluded that, in certain circumstances, there could be an element of temporality in the operation of section 65(2) which was not excluded by the decision in Awua, his was a minority view when he said at p970
In my judgment, this distinction between the period for which the duty continues and the period for which the accommodation must be provided is significant. The House of Lords [in Awua] was concerned with the meaning of "accommodation" in ... section ... 60(1). It held that there was no such qualification as "permanent" either in (that) section ... or in section 65(2). It was not concerned with the operation of section 65(2) in those cases where it applies, not to identify the criteria by reference to which the reasonableness of the offer, or the security of tenure, so as to satisfy the Wednesbury test can be established. Nor does the Awua judgement exclude, in my opinion, the possibility that the authority may secure an offer which does not satisfy the test but which is made and which may, perhaps must, be accepted as an interim measure ... . That would mean the duty remained to be performed when the interim period was over.
Despite the attempt by the applicants to draw some comfort from this passage, I am quite satisfied that the type of situation to which Evans LJ was referring, has no scope to afford assistance to either of them in the present cases. In both of these cases the authority was expressly concerned to secure accommodation which satisfied the section 65(2) requirement in anticipation of the provision of settled permanent accommodation when the authority was in a position so to do.
The rival contentions: The Applicants.
20. Since the decision in Awua, there have been an number of decisions at first instance in which the courts have considered the question whether or not a local authority may effectively claim that accommodation which it had secured for homeless persons had been provided in discharge of its section 65(2) duty, notwithstanding that at the time of its provision, the housing authority did not believe that it was fulfilling that duty by the provision of accommodation which was only temporary. The respondents contend in the present cases that, whatever their state of mind may have been at the date that temporary accommodation was secured for the applicants, merely by making such accommodation available to the applicants their statutory duty, as explained in Awua, was fulfilled. In the case of Al-Nashed, the respondents contend that the provision of the accommodation at 54 Shelley Avenue (above), did satisfy the duty if, and to the extent that, it had not already been fulfilled. The applicant contends that the respondents are bound by the representation made to him that he would be provided with permanent accommodation, alternatively that they cannot now be heard to say that what had been provided was provided in discharge of a duty which they did not believe they owed.
21. For the applicant Bibi, the contention was somewhat differently expressed. It was said that the provision of temporary accommodation in October 1995 did not operate to discharge the respondents' section 65(2) duty because they had not considered that what they did had that effect. Whatever might be the court's decision in relation to this first point, the action of the respondents in requiring L & Q to take action to re-possess the property at 17 Albany Road (above) was not lawful. It was an unjustified interference with the legal relationship which existed between L & Q and the applicant. On the evidence which can be deduced from the respondents' housing file in respect of the applicant, it is manifest that, in making the offer in respect of this property, the respondents had not intended to make an offer which would discharge their duty under section 65(2). Accordingly such duty was not and has not been discharged.
The rival contentions: The respondents.
22. Al-Nashed: The provision of the assured shorthold tenancy, in late 1996, of 17 Albany Road discharged their statutory duty. The provision of the assured shorthold tenancy at 54 Shelley Avenue had the effect of discharging the respondents' statutory duty under section 193 of the Housing Act 1966, which had by then come into force. Alternatively, if the duty under the earlier Act was not discharged by the provision of the Albany Road property, it was discharged by the provision of the property in Shelley Avenue. The decisions in the cases of Awua (above), Mansoor (above) and R v. LB Newham ex p Hassan 29 HLR 378 support the proposition that it was the provision of the property in Albany Road which satisfied their statutory obligation. Although the applicants challenged the correctness of the decisions in the last two case by relying on the decision of Laws J (as he was) in R v. LB Lambeth ex p Ekpo-Wedderman (1998) 31 HLR 498, that case was distinguishable from the present cases, since Laws J decided it upon its own facts and considered that Hassan had been correctly decided. If it was necessary for the respondents to 're-write' history by revisiting their actions after Awua had been decided, then they were entitled to.
23. The applicants case was that there could be no retrospective justification for an action which was performed in the mistaken belief that it was performed under a statutory duty which had not existed at the time when the action was performed. Even if a duty had arisen under the Act of 1996, there was nothing to prevent the respondents from having to comply with their original promises which continued to be binding.
24. In order to avoid endless quotation from first instance decisions, it is, in my judgment, undesirable that I should seek to resolve the possible conflict in the decisions referred to above. That is for a higher court to perform. It is sufficient for me to say that I am not persuaded that Hassan was incorrectly decided. It is not open to me to disagree with either Awua or Miah even if I thought that they had not been correctly decided, which respectfully I do not. Subject to what follows, I would hold in favour of the respondents on their submissions.
25. In so far as the case of Bibi, is concerned, the contention was that the provision of 34 Jade Close discharged the respondents' duty under section 65(2). Likewise, the provision of the property at Albany Road was also capable of satisfying that same duty. Subsequent offers of accommodation were made neither under the provisions of part III of the Act of 1985 nor under Part VII of the Act of 1996. Since the applicant was now threatened with homelessness her position was that she should now apply under Part VII of the later Act. The applicants wished to keep open for the Court of Appeal, the question whether the decision in the case of R v. LB Newham ex p Miah 30 HLR 691 in which the deputy judge had decided in circumstances such as the instant cases the applicants could rely on the doctrine of legitimate expectation. The reference which the respondents had made to the Act of 1996 was irrelevant since neither applicant had applied under that Act. Accordingly the respondents could not owe any duty under it nor could they lawfully contend that any provision of accommodation subsequent to the original property was in the nature of a discharge of any duty under the later Act. The cases remained where they had begun, that is to say under the Act of 1985.
Discussion
26. A matter of obvious and logical concern is the fact that the respondents at no time thought, let alone decided, that when they secured the provision of accommodation to either of the applicants, they were doing so otherwise than to comply with their duty under the law as they believed it to be, which was in accordance with their understanding of the 1985 Act. For the avoidance of doubt, the respondents both believed and acted in the belief, that staged accommodation was what the law required them to provide until such time as secure and suitable accommodation became available to each of the applicants. The decisions which were made to continue the provision to the applicants of temporary accommodation after they had moved, or were moved, out of the initial property which was secured for them is inconsistent with any other notion except, possibly, that the respondents were continuing to treat the applicants each time as if they were newly homeless or threatened with homelessness. But again, this is not what happened.
27. In this case, the respondents are a statutory body which can only lawfully act in ways which are within the powers which the relevant statute confers upon them (intra vires). The respondents have made promises, or representations, to the applicants in regard to the manner in which they intended to continue to exercise the powers they had, albeit in the mistaken belief that they were obliged to exercise them in a particular way. There can be little doubt but that both applicants have been led to expect that the respondents would continue so to act up to the stage at which these proceedings were imminent. In those circumstances, both applicants could and did reasonably expect that they would, in course of time, come to enjoy the substantive benefits of those representations, or promises, in the shape of permanent and secure accommodation being made available to them.
28. The question arises for consideration, therefore, whether or not it would be unfair if the respondents were now to be permitted to resile from the position which they have occupied for so long. The parties made further written submissions at my request. After oral submissions had concluded, the applicants submitted that if the respondents did resile from their position, and treat their cases as if they had arisen under the provisions of the Act of 1996, this would amount to an abuse of power. In these cases there was no sufficient overriding interest present which would justify the change from their previous position. The court was referred to Regina v. North and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 621. In paragraph 56 of his judgment in that case Lord Woolf MR said
56. what is still the subject of controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him in different way. Here the starting point has to be to ask what, in the circumstances, the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318, 338, "But what is their legitimate expectation?" Where there is a dispute as to this, the dispute has to be determined by the court as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.
57. There are at least three outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight which it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds . This has been held to be the effect of changes in policy in case involving early releases of prisoners: see In re Findlay ... .Reg. v. Secretary of State for the Home Department, ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629) in which case the court will judge for itself the adequacy of the reasons advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different courses will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
58. ... . In the case of the third, the court has, when necessary, to determine whether there is sufficient overriding interest to justify a departure from what had been previously promised.
Although, the respondents' further submissions did not include reference to Coughlan, I entertain no doubt that the present case falls into the third of Lord Woolf's categories, subject only to the question whether it can be said that expectations which were based on the respondents' error of law can be said to have induced in the minds of the applicants an expectation which can properly be described as "legitimate". In this context it is relevant to note that the 'promises' in the present case although based on an incorrect understanding of the law were not shown to have themselves been outside the powers of (ultra vires) the respondents. Such arguments could have been addressed to the court by the respondents on the applications as they had been formulated before this point arose for consideration; see ex p. Miah and ex p. Ekpo-Wedderman.
29. It is unnecessary to cite here, all the authorities to which Lord Woolf referred in Coughlan. However it is pertinent to note the citation from the speech of Lord Templeman in Reg. v. Inland Revenue Commissioners ex parte Preston [1985] AC 835 where in two passages he is concerned with the doctrine of abuse of powers. In the first at p851, he said
... I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.
In the second passage at p862, he said
Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers.
Conclusion
30. In the present case, I hold that by resiling from the position which they had so long occupied, the respondents have acted in abuse of their powers, as that doctrine has been developed by the courts. In this case, although there are only two applicants who are challenging the decision of the respondents, I was informed, and have no difficulty in accepting, that there are many others in a position similar to the applicants both in the area of the respondent authority in this case, as well as in other local authority areas. The question arises whether the existence of these facts is decisive against granting relief to these applicants on the basis of the possible limitations indicated by Lord Woolf in Coughlan at paragraph 59, when he said
Nevertheless, most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. We recognise that the court's role in relation to the third category is still controversial; but as we hope to show it is now clarified by authority.
Despite the fact that Lord Woolf did not foresee that there might be categories of cases, as here, where there might be many who were affected, I can see no basis upon which it would be just that these applicants should be deprived of the remedy to which they would otherwise be entitled. Persons who are in a similar position will form part of a clearly defined group who can be readily identified. What I respectfully apprehend Lord Woolf will have had in mind in this passage is that it would be inappropriate that the kind of person who could take advantage of an abuse of power should not come within a reasonably clearly defined group. The applicants, and those to whom similar representations may have been made, certainly fall within a group which can be readily ascertained.
31. The consequences to the respondents will be financial. While this may bean unavoidable consequence of this judgment, it stems in part, at least, from the incorrect nature of the guidance offered to housing authorities by Central Government in the Guidance document issued under section 70 of the 1985 Act.
.
32. In that section of his judgment which immediately follows the last quotation, Lord Woolf indicates that one of the factors of importance, in the consideration of abuse of power is the extent to which an applicant's rights may be supplemented by reference to rights under the European convention of Human Rights. In this case Article 8 and the right to respect for a person's home are directly involved. It is self evident that both applicants and their families have been denied one of the most fundamental of rights, namely that of secure and suitable accommodation.
33. It has to be recognised that the conclusion at which I have arrived may be seen to be inconsistent with the decisions in Hassan. This is not necessarily the case as the decision of Laws J in Ekpo-Wedderburn makes clear. Since the decision of the court of Appeal in Coughlan, the route to establish a basis upon which relief can and should be granted to those who were promised, but have never had the accommodation secured to them, suitable permanent accommodation is readily explained on the basis of denial of a legitimate expectation of a substantive right. For these reasons, these applications will succeed. The precise forms of relief will be for submission when the parties have had the opportunity to consider the terms of this judgment.