England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SCOTT BAKER: The main issue in this case is whether the duty on a local housing authority to provide accommodation under Section 188 of the Housing Act 1996 requires suitable accommodation, or whether any accommodation is sufficient. The decision is important on the one hand because it affects a great number of people who are homeless and in apparent priority need and on the other because of the obvious implications for housing authorities who face an ever increasing demand for accommodation.

2. The applicant and his wife and three daughters under ten are asylum seekers from the former Yugoslavia. The applicant arrived on 14 August 1997. He went to stay with his brother in a studio room in the London Borough of Kensington and Chelsea. On 23 August 1998 his wife and three children followed him to this country. The whole family then stayed with his nephew in a two bedroomed flat in Acton which was wholly unsatisfactory because the two families comprised a total of nine members.

3. The family applied to the London Borough of Ealing as homeless. The Council eventually indicated on 14 September that it would provide interim accommodation. It offered a triple room in a hostel in Ealing and a double room in a hostel in Southall. Later it said it had found a double room in another hostel in Southall. All were rejected by the applicant.

4. The respondent accepts it owed the applicant a duty on 14 September 1998 under Section 188 to house him and his family. It is also accepted that from 16 September 1998 the respondent has performed that duty. In these circumstances I questioned at the outset of the hearing why the application should be determined. Both sides urged me to do so primarily on the ground that the case raises an important issue of law that requires a decision and by the very nature of these cases matters have usually moved on by the date of a substantive hearing. Accordingly I gave leave to amend the Form 86A to seek declaratory relief and the case proceeded.

5. One further matter should be stated at the outset, namely that the respondent proceeded to discharge its duty under Section 188 in the belief that the duty was to provide suitable accommodation. Its belief was based on two grounds. First The Statutory Code of Guidance on the Housing Act 1996 says at paragraph 20 that the legislation requires that all accommodation secured must be suitable, and second because the unreported decision of Collins J in R -v- Mayor and Burgesses of the London Borough of Newham (No.3) ex parte Fitzgerald Ojuri CO/1218/98 9 July 1998 so indicated. Thus the respondent asked itself, says Mr Luba for the applicant, the right question. Did what it provided meet the duty? Mr McGuire for the respondent, however, contends that notwithstanding the belief that the accommodation had to be suitable that is not what the section requires. I turn therefore to the construction of Section 188.

6. Part VII of the Housing Act 1996 casts duties on local housing authorities. It is triggered when an authority receives an application from a person who may be homeless or threatened with homelessness. The first duty is to enquire into the application. The following matters require consideration:

7. Is the applicant homeless?

8. Is he in priority need?

9. Has he become homeless intentionally?

10. Has he a local connection?

11. Is he eligible to apply?

12. The housing authority has a duty to reach a decision on these questions and notify it to the applicant. This case concerns what happens between the point of application and the point of decision.

13. Section 188 (1) provides:

14. It is to be observed that the word accommodation in this sub section is not qualified by the word suitable whereas, as will be seen in a moment, Section 206 refers to “suitable accommodation”.

15. It is necessary to look with a little care at the framework of Part VII of the Housing Act 1996.

16. Returning to Section 188, the duty is triggered not only at a low threshold but, by Section 188(2), is owed to all comers. Section 188(3) says when the duty ends, with a rider that there is a discretion to continue to provide accommodation pending a decision on a review. My attention has been drawn to the fact that the same five words appear in the rider “secure that accommodation is available” as appear in sub section (1). These five words recur consistently through the following sections and in my judgment that is an important indicator to the meaning of “accommodation” in sub section (1). These are the critical words that express the duty. The powers and duties under this part of the Act are always characterised by the words “secure that accommodation is available” see e.g. Section 190(a), Section 193(2), Section 194(1), Section 195(4), and Section 200.

17. The Act then proceeds to a group of sections headed “Supplementary Provisions”. Section 205 and the following sections deal with the discharge by housing authorities of their housing functions under Part VII. Section 205(1) provides:

18. It then lists sections 206 - 209, and sub section (2) provides that in those sections those functions are referred to as the authorities “housing functions under this part”.

19. Section 206 is headed “discharge of functions by local housing authorities”.

20. Section 206(1) provides:

21. The words “only in the following ways” clearly mean that the duty must be discharged in the ways described and no other.

22. Then, as Mr Luba pointed out, Section 206(1) is concerned with the quality of the accommodation that must be provided i.e. suitable and sub section (2) with the price that is to be paid for it.

23. The question is whether, when a local authority acts under Section 188, it is performing a “housing function”. In my judgment it is and it would be quite unrealistic to say that the Section 188 exercise is something, as it were, preliminary to a housing function because the particular claimant might not after investigation turn out to be entitled to be accommodated. Once it is clear, as in my view it is, that it is performing a housing function the qualification of suitability of the accommodation is imported into Section 188 by virtue of Section 206(1). This construction is in my view strongly supported by the common thread of the duty to “secure that accommodation is available” that runs through so many sections in this part of the Act. It would be a nonsense to conclude that Section 206 required these words to be read as suitable accommodation in every section except 188.

24. Another pointer in favour of this construction is to be found in section 206(2). If the respondent's argument is right, authorities would have no power to charge for interim accommodation because the charging provision would be limited to those cases where the authority was discharging its function in providing suitable accommodation.

25. Insofar as there is an argument that requiring authorities to provide suitable interim housing will provide an intolerable burden and eat into their permanent housing stocks, this I think is answered by Section 207. The philosophy is that no one should go into permanent housing on an interim basis. Section 207(4) provides the escape hatch, giving authorities the opportunity of applying to the Secretary of State if they cannot reasonably discharge their housing functions without using their permanent stock. The only parliamentary order thus far made under sub section (4) relates to the Isles of Scilly. It is, I think, unnecessary to make any further reference to provisions in the present scheme. Mr Luba says the structure of the scheme is tolerably clear and it is not the same as the previous scheme. After the 1996 Act received the Royal Assent there was a delay before Part VII was implemented, specifically to enable local housing authorities to be able to meet their obligations.

26. It is, however, desirable to look briefly at the previous legislation, namely the Housing Act 1985. There the interim duty to accommodate was in Section 63 and was to “secure that accommodation is made available” pending a decision as a result of enquiries. It is common ground that that obligation did not require “suitable” accommodation; any accommodation was sufficient. The forerunner of Section 206 was Section 69. It provided that a local housing authority may perform any duty under Section 65 or under Section 68 (not be it noted Section 63) by making available suitable accommodation. Thus, to discharge the interim duty under Section 63, any accommodation was sufficient, but longer term accommodation under Section 65 and Section 68 had to be suitable. Interestingly, Section 69(2), the forerunner of the charging provisions under section 206(2), specifically gave a right to charge for interim accommodation under Section 63 as well as for longer term accommodation under Sections 65 and 68.

27. It seems to me, therefore, that in the statutory context the answer to the question of construction in Section 188 is clear. Accommodation means suitable accommodation. An authority which provides something less does not discharge its duty. This view is fortified by the statutory code of guidance that accompanied the Act (see in particular paragraph 20). I have also been provided with extracts from Hansard, which in the event I have not considered because I do not find a sufficient ambiguity within the legislation.

28. Further support for the conclusion I have reached is to be found in Collins J judgment in Ojuri. He had no doubt that what was required under Section 188 was suitable accommodation. His views are, however, of limited value because the point was not argued.

29. When I first read the skeleton arguments in this case I found Mr McGuire’s submissions superficially attractive. “Accommodation” is not qualified by “suitable” in Section 188 and the draughtsman could so easily have inserted the words “suitable” if the intention was that accommodation must be suitable. Also, suitable accommodation is specifically referred to in Section 206. The provision of interim accommodation is really a fort holding exercise. No obligations under Part VII have been discharged, says Mr McGuire, by providing it. The discharge of functions comes later. The purpose of Section 188 is to get the homeless off the streets; speed takes precedence over comfort; applicants need to be housed somewhere while their cases are investigated. Housing authorities have very extensive duties to provide accommodation (see for example Sections 17 and 20 the Children Act 1989) and only limited resources to do so. To construe Section 188 as obliging them to provide suitable housing in every case would be to create an intolerable burden. The section should be read literally without adding in the word suitable.

30. Because I have reached a clear conclusion on the construction point I have not found it necessary to discuss further the helpful arguments of Mr McGuire which are in any event summarised in his skeleton. I have no doubt that the respondent and other authorities would prefer the Courts to interpret Section 188 as requiring the provision of suitable accommodation only if it is available. However, as Mr Luba points out, the Act provides no such escape provision and to permit it judicially would be to reduce what is a mandatory requirement to a discretionary one, so that an authority without adequate resources would be able to avoid the obligation Parliament has placed upon it. How a local authority deploys its resources is a matter for it, but subject to any mandatory duty Parliament has placed upon it. To meet the cost of a mandatory obligation the authority may have to make economies elsewhere. It is not for the Courts to interfere. See R -v- East Sussex County Council ex parte Tandy 10 Administrative Law Reports 453 at 462D.

31. There is a further question namely whether what was offered to the applicant on 14 September was suitable. At first sight it would appear that this is a question of fact upon which this Court would only normally interfere on Wednesbury grounds. However, Mr Luba submits that a point of law arises in the present case. The duty in Section 188 is to secure that accommodation is available for his (the applicant's) occupation. Section 176 is headed “Meaning of Accommodation Available for Occupation”. It provides:

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

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

34. On its true construction the word accommodation in Section 188 of the Housing Act 1996 means suitable accommodation. Splitting a family which includes a wife and three children under 10 into two hostels some distance apart is not a lawful discharge of the duty under Section 188. Accordingly the applicant is entitled to the declarations sought in the amended Form 86A.

35. ORDER: Application allowed. Leave to amend the form 86A as agreed. No order as to costs. Legal aid taxation of the Applicant's costs.