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Cite as: [1995] 3 All ER 493, [1995] 3 WLR 215, 93 LGR 581, [1996] AC 55, [1996] 1 AC 55, [1995] UKHL 23

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Awua, R (on the application of) v Brent London Borough Council [1995] UKHL 23 (06 July 1995)

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

LONDON BOROUGH OF BRENT (RESPONDENTS), EX PARTE AWUA (A.P.) (APPELLANT)

ON THURSDAY 6 JULY

Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Taylor of Gosforth
Lord Hoffmann

LORD GOFF OF CHIEVELEY

My Lords

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD JAUNCEY OF TULLICHETTLE

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD SLYNN OF HADLEY

My Lords.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD TAYLOR OF GOSFORTH

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD HOFFMANN

My Lords,

Miss Awua came to this country from Ghana in 1980. From 1988 until 1991 she lived with a man in the London Borough of Tower Hamlets. They had two children. While she was pregnant with her second child the man told her to leave. On 18 June 1991 she applied to the Tower Hamlets council, as a local housing authority with which she had a local connection, for accommodation. The council, after making enquiries pursuant to section 62(1) of the Housing Act 1985, determined on 7 October 1991 that she was homeless or threatened with homelessness, in priority need and not intentionally homeless. It thereby accepted that it had a duty pursuant to section 65(2) to "secure that accommodation becomes available for [her] occupation." She and her children were at first accommodated in a hotel but as from 31 January 1992 the council made accommodation available to her in a two bedroom flat at 10b Clarendon Road, E.11. It was in a "short life" house let to the council by a private landlord and the council's intention was that Miss Awua should stay there until they could offer her more permanent accommodation. In March 1992 the council arranged for the Peabody Trust to offer her a flat at 10, Jellicoe House, Shipton Street E.2. It was explained to Miss Awua that the council's policy was to make only one offer. If she refused an offer of accommodation which the council considered "suitable" (see section 69(1)) it would regard its duty under section 65(2) as discharged and make no further offer. It would also require her to leave the accommodation at 10b Clarendon Road. Miss Awua, having viewed the flat, did not like it. She refused the offer. It was at first contended that she was entitled to do so because the council could not reasonably have regarded it as suitable. But that argument has not been pursued. It is accepted that the council's duty was thereby discharged. The result was that she was given notice to quit 10b Clarendon Road.

In these straits, Miss Awua applied to the London Borough of Brent, with which she also had a local connection. Brent conducted its own investigation under section 62(1) and determined that she was homeless and in priority need but intentionally homeless because her eviction from 10b Clarendon Road had resulted from her decision not to accept the offer of 10 Jellicoe House. It therefore declined to accept any greater responsibility for her accommodation than that imposed by section 65(3) in respect of persons in priority need but intentionally homeless, namely a duty to secure that accommodation is made available "for such period as they consider will give [her] a reasonable opportunity of securing accommodation for [her] occupation" and to furnish her with advice and assistance.

Miss Awua applied to the Divisional Court for judicial review to quash Brent's decision that she was intentionally homeless. Section 60(1) defines intentional homelessness as follows:

"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."

Sir Louis Blom-Cooper Q.C., sitting as judge hearing the Crown Office list, decided that ceasing to occupy 10b Clarendon Road could not have resulted in intentional homelessness because the accommodation to which the section refers must be "settled" and not temporary. Nor could Brent say that Miss Awua had ceased to occupy 10 Jellicoe House because she had never moved into it: see R. v. City of Westminster, Ex parte Chambers (1982) 6 H.L.R. 24. He therefore quashed the decision. The Court of Appeal affirmed the decision in respect of 10 Jellicoe House but disagreed with the conclusion that 10b Clarendon Road was not "settled" accommodation. It held that, having regard to the fact that Tower Hamlets had accepted the full housing duty under section 65, Brent was entitled to regard the accommodation at 10b Clarendon Road as settled. Miss Awua invites your Lordships to reverse this decision and restore that of the judge. The Council does not seek to challenge the finding that Miss Awua did not "cease to occupy" 10 Jellicoe House.

There is no reference to "settled" accommodation in section 60(1). It refers simply to "accommodation". The same word is used in other sections in Part III of the Act, including the basic definition of "homeless" in section 58(1): "A person is homeless if he has no accommodation in England, Wales or Scotland." So if the word "accommodation" has the same meaning in section 58(1) as it does in section 60(1) and means settled accommodation, then a person in temporary accommodation, however suitable and comfortable, is homeless.

Until certain amendments introduced by the Housing and Planning Act 1986, the Housing Act 1985 contained no definition of "accommodation". Its undefined meaning in the context of homelessness was considered by this House in Puhlhofer v. Hillingdon London Borough Council [1986] AC 484. Lord Brightman, with whom all the rest of their Lordships agreed, said that it was impossible to imply that the accommodation should be "appropriate" or have any quality except that of being fairly described as accommodation. As an example of shelter which would have failed this test, he instanced Diogenes's tub. The modern equivalent would be the night shelter in R. v. Waveney District Council, Ex parte Bowers, The Times, 25 May 1982, in which the applicant could have a bed if one was available but had to walk the streets of Lowestoft by day.

Puhlhofer was concerned with the physical quality of the accommodation rather than the period of time for which it would be available. It seems to me highly improbable however, that having rejected any implication as to physical suitability, your Lordships' House would have accepted the implication of a requirement that the accommodation must in some sense be settled. The Puhlhofers and their two children were living in a single small bedroom in a bed and breakfast guest house pending the availability of a two-bedroom flat. No one could have described their accommodation as settled. The Act deals with precariousness of tenure by the concept of being "threatened with homelessness", which is defined in section 58(4) as meaning that it is likely that one will become homeless within 28 days. This does not fit very easily with an implication that a person whose tenure is less precarious can be regarded as not merely threatened with homelessness but actually homeless.

The consequence of the decision in Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless. This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority's duty to provide them with accommodation. To remedy this difficulty, the 1986 amendments introduced a definition of "accommodation" in section 58(2A):

"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."

Guidance on the quality of accommodation which a local housing authority is entitled to treat as reasonable for a person to continue to occupy is provided by section 58(2B):

"Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation."

It follows that a local authority is entitled to regard a person as having accommodation (and therefore as not being homeless) if he has accommodation which, having regard to the matters mentioned in subsection (2B), it can reasonably consider that it would be reasonable for him to continue to occupy. This produces symmetry between the key concept of homelessness in section 58(1) and intentional homelessness in section 60(1). If the accommodation is so bad that leaving for that reason would not make one intentionally homeless, then one is in law already homeless. But there is nothing in the Act to say that a local authority cannot take the view that a person can reasonably be expected to continue to occupy accommodation which is temporary. If, notwithstanding that the accommodation is physically suitable, the occupier's tenure is so precarious that he is likely to have to leave within 28 days, then he will be "threatened with homelessness" within section 58(4). But I find it hard to imagine circumstances in which a person who is not threatened with homelessness cannot reasonably be expected to continue to occupy his accommodation simply because it is temporary.

On the other hand, the extent to which the accommodation is physically suitable, so that it would be reasonable for a person to continue to occupy it, must be related to the time for which he has been there and is expected to stay. A local housing authority could take the view that a family like the Puhlhofers, put into a single cramped and squalid bedroom, can be expected to make do for a temporary period. On the other hand, there will come a time at which it is no longer reasonable to expect them to continue to occupy such accommodation. At this point they come back within the definition of homeless in section 58(1).

I would therefore reject the submission of Mr Roger Henderson Q.C. that "accommodation" in section 58 and section 60 must be construed as "a settled home". There is absolutely no warrant in the language of the statute or the decision of this House in Puhlhofer for implying such a concept. Yet Sir Louis Blom-Cooper and the Court of Appeal thought that the authorities required it. Where did such an idea come from?

The answer is that it comes from an altogether different context. In Dyson v. Kerrier District Council [1980] 1 W.L.R. 1205 Miss Fiona Dyson gave up her flat in Huntingdon and went to live in Cornwall. But the only accommodation which she had arranged for herself was a three month winter let of a cottage in Helston. She knew that the tenancy was not protected and that she would have to leave. When she was finally evicted, she applied to the local council for accommodation on the ground that she was now homeless. The council said that she was intentionally homeless because she had given up the Huntingdon flat knowing that after the expiry of the winter let she would have nowhere to live. Miss Dyson's argument was that in applying the predecessor of section 60(1) one was concerned only with the accommodation one had been occupying at the time when one became homeless. This was the cottage in Cornwall and it was not reasonable to expect her to continue to occupy that accommodation because the court had ordered her to leave it. Brightman L.J. described this as a formidable argument on the literal wording of the statute. But the Court of Appeal held that such a construction would enable people to jump the housing queues by making themselves intentionally homeless at one remove. They would only have to move into temporary accommodation and wait until evicted. The Court therefore held that one was not confined to asking whether it would have been reasonable to continue to occupy the cottage in Cornwall. If it would have been reasonable to continue to occupy the flat in Huntingdon and there was a causal link between deliberately leaving that flat and her subsequent homelessness in Cornwall, then she was intentionally homeless.

What constitutes such a causal link? In Din v. Wandsworth London Borough Council [1983] 1 AC 657 Lord Wilberforce referred with approval to the analysis of Ackner L.J. in the Court of Appeal. He summarised it by saying that a disqualification on the grounds of having made oneself intentionally homeless (such as attached to Miss Dyson when she left Huntingdon) was not displaced by obtaining temporary accommodation. Ackner L.J. had said (in a passage later cited by the Court of Appeal in Lambert v. Ealing Borough Council [1982] 1 W.L.R. 550, 557):

"To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as a 'settled residence,' as opposed to what from the outset is known (as in Dyson's case [1980] 1 W.L.R. 1205) to be only temporary accommodation. What amounts to 'a settled residence' is a question of fact and degree depending upon the circumstances of each individual case."

The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. This jurisprudence is well-established (it was approved by this House in Din) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. It is the importation of the distinction between settled and temporary accommodation into other questions arising under Part III of the Act which seems to me unwarranted.

Thus there has occasionally been a tendency to treat Dyson as entailing that Miss Dyson became homeless when she left Huntingdon and remained homeless while living in her winter let in Cornwall. By this means, the notion of settled accommodation is introduced into the concept of homelessness. I cannot however accept that a lady spending Christmas in a cottage in Cornwall which she has the right to occupy for another three months (and therefore not threatened with homelessness within the meaning of section 58(4)) should somehow be deemed to be homeless. And of course Dyson implies no such thing. It decides only that her homelessness after eviction from the cottage in Cornwall is intentional because it was caused by her decision to leave the flat in Huntingdon. Some support for a contrary view can be found in the speech of Lord Lowry in Din but this opinion was not shared by the other members of the House, who analysed the case solely in terms of causation. What persists until the causal link is broken is the intentionality, not the homelessness.

I would therefore hold that "accommodation" in section 58(1) and section 60(1) means a place which can fairly be described as accommodation (Puhlhofer) and which it would be reasonable, having regard to the general housing conditions in the local housing authority's district, for the person in question to continue to occupy (section 58(2A) and (2B)). There is no additional requirement that it should be settled or permanent.

The same is in my view true of the "accommodation" which the local housing authority is under a duty to make available to an unintentionally homeless person under section 65(2). I say this fully conscious of the fact that the courts and the Department of the Environment have for some years taken a different view. So paragraph 11.2 of the Department of the Environment's Code of Guidance says: "The legislation makes it clear that the accommodation secured must be long-term settled accommodation, commonly referred to as 'permanent'." In R. v. London Borough of Brent, Ex parte Macwan (1994) 26 H.L.R. 528 Leggatt LJ. pointed out, in my view quite rightly, that this statement was wrong. The Act says nothing of the kind. But he felt constrained by the authorities to say that accommodation under section 65(2) "does have to be secured without limit of time and so .... be indefinite." Dillon L.J. said that "the accommodation to satisfy the council's duty must ... be 'permanent' in the sense in which that term is used in the cases."

The cases from which this doctrine is derived fall into two categories. The first is the line of authority starting with Dyson v. Kerrier District Council [1980] 1 W.L.R. 1205 to which I have already referred. These are concerned with whether deliberately ceasing to occupy accommodation A, which it would have been reasonable to continue to occupy, can result in intentional homelessness when one is later obliged to leave temporary accommodation B or C. They have nothing to do with the meaning of "accommodation" in section 58(1), 60(1) or 65(2). The second category consists of cases in which judges have tried briefly to encapsulate the distinction between the council's duty to the intentionally homeless under section 65(3) and its duty to the unintentionally homeless in section 65(2). Examples are Lord Denning M.R.'s remarks in R. v. Slough Borough Council, Ex parte Ealing Borough Council [1981] Q.B. 801, 811 and Lord Brightman in Puhlhofer, who at p. 512 summarised the distinction as "indefinite accommodation if not intentionally homeless, temporary accommodation if intentionally homeless." This dictum has been treated as authority for the proposition that the full duty under section 65(2) is to provide permanent accommodation. But I do not believe that Lord Brightman intended any such thing. It would have been quite inconsistent with everything else which he said about the meaning of "accommodation" and the actual decision of this House, which was that although the Puhlhofers were plainly in temporary accommodation the council owed them no further duty under Part III of the Act. All that Lord Brightman was doing, in outlining the scheme of the Act, was to draw attention to the fact that the duty under section 65(3) was limited whereas that under section 65(2) was in practical terms potentially unlimited. At the end of the period which the council considers enough to give the intentionally homeless person a reasonable opportunity to find accommodation, the council can require him to leave. If he consequently becomes homeless, he will not on that account have any further claim under the Act. An unintentionally homeless person, on the other hand, cannot be required to leave the accommodation provided under section 65(2) unless he is either provided with alternative accommodation or there is a reason why his consequent homelessness will not give rise to a further duty under section 65(2). In this sense the duty to accommodate is indefinite, but it is not in my view legitimate to construe it as a duty to provide permanent accommodation.

Attempts to reconcile this construction with the practicalities of operating Part III have generated a good deal of litigation. Nor have the results been particularly convincing. For example, most councils which have acknowledged an obligation under section 65(2) start (as in Puhlhofer) by providing temporary accommodation, often for quite lengthy periods. Does this mean that until such time as the council has found permanent accommodation, it is in breach of its statutory obligation? The courts have got round this problem by saying that the council may discharge its duty "in stages", so that it fulfils its statutory duty by providing temporary accommodation and declaring an intent to provide permanent accommodation at some time in the future. This seems to me a refined and artificial doctrine, constructed by the courts to deal with an unnecessary problem of their own making. What happens if a person in temporary accommodation behaves so badly that he has to be asked to leave? Can he say that the duty under section 65(2) remains undischarged and that he is still entitled to be found permanent accommodation? In R. v. East Hertfordshire District Council, Ex parte Hunt (1985) 18 H.L.R. 51, Mann J. avoided this consequence by the heroic method of deciding that a woman with a child who had been given a temporary licence to occupy a bed-sitting room was in settled accommodation. On the other hand, in R. v. London Borough of Merton, Ex parte Ruffle (1988) 21 H.L.R. 361, Simon Brown J. decided that settled and temporary accommodation were mutually exclusive concepts. It cannot be easy, in this state of the law, for local housing authorities to know where their duties begin and end.

And what of the person who, after a period of temporary accommodation, is no longer in priority need? Does he or she nevertheless have to be found permanent accommodation? Take, for example, the pregnant woman and her partner, who are unintentionally homeless and in priority need under section 59(l)(a). They are found temporary accommodation by the local housing authority. The child is born and placed for adoption. They have no other children. Is the council still under a duty to find them permanent accommodation, in priority to others on its housing list? Is the council still under a duty to provide them with accommodation at all? Why should their earlier homelessness and need now give them priority over others?

My Lords, the doctrine that the duty under section 65(2) is to provide permanent accommodation seems to me to confuse the council's duties under Part III with its more general duties as housing authority. In Puhlhofer Lord Brightman said of Part III (then the Housing (Homeless Persons) Act 1977) -

"It is an Act to assist persons who are homeless, not an Act to provide them with homes .... It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there are probably bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand."

These remarks seem to me still as true and perceptive as they were in 1986.

I would therefore hold that the duty of the local housing authority to an unintentionally homeless person in priority need under section 65(2) is simply to secure that accommodation becomes available for his occupation. Under the amended section 69(1), the accommodation must be "suitable", but this does not import any requirement of permanence. In determining whether accommodation is "suitable" the council is instructed to "have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act". This points to suitability being primarily a matter of space and arrangement, though no doubt other matters (such as whether the occupant can afford the rent) may also be material. But there is no reason why temporary accommodation should ipso facto be unsuitable. If the tenure is so precarious that the person is likely to have to leave within 28 days without any alternative accommodation being available, then he remains threatened with homelessness and the council has not discharged its duty. Otherwise it seems to me that the term for which the accommodation is provided is a matter for the council to decide. In some cases, such as a person in priority need because he is old, mentally ill or handicapped (section 59(l)(c)), the council may decide to provide permanent accommodation as soon as reasonably possible. In other cases, such as the pregnant woman in my earlier example, it may prefer to use temporary accommodation and wait and see. But provided that the decision is not Wednesbury unreasonable, I do not think that the courts should lay down requirements as to security of tenure.

If a person who has been provided with accommodation in accordance with section 65(2) is once again made homeless or threatened with homelessness (for example, because the council or other landlord has terminated his right of occupation) he may apply again and the council will be required once again to make enquiries under section 62(1). If it is found that he is now intentionally homeless, the duty will be limited to that contained in section 65(3); if no longer in priority need, to that contained in section 65(4).

Returning however to section 60(1), it seems to me that Brent was entitled to take the view that Miss Awua ceased to occupy 10b Clarendon Road in consequence of her having deliberately decided to refuse the offer of 10 Jellicoe House. 10b Clarendon Road was accommodation available for her occupation and which it would have been reasonable for her to continue to occupy until such time as 10 Jellicoe House was ready for her. Mr. Henderson submitted that if she had accepted 10 Jellicoe House, she would have had to leave 10b Clarendon Road anyway. It therefore cannot be said that it was reasonable for her to continue to occupy it. But this argument, based on what would hypothetically have happened if she had done something different, is precluded by the decision of this House in Din, where Lord Fraser said (at p. 671):

"The material question is why he became homeless, not why he is homeless at the date of the inquiry. If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant."

This is an a fortiori case because if Miss Awua had accepted 10 Jellicoe House she would at some date have left 10b Clarendon Road but would not thereby have become homeless at all. Section 60(1) does not require that it should have been reasonable for Miss Awua to continue to occupy 10b Clarendon Road for any particular length of time and it is sufficient in this case to say that it would have been reasonable for her to stay there until she was able to move to 10 Jellicoe House. I would therefore dismiss the appeal.