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Cite as: [2002] 1 FCR 183, [2002] HLR 7, [2001] UKHL 57, [2001] 3 WLR 1339, [2002] AC 547, [2001] NPC 154, [2002] 1 All ER 176, [2002] 1 AC 547

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Abdulrahman Mohamed v. The London Borough of Hammersmith & Fulham [2001] UKHL 57 (1st November, 2001)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Hutton Lord Hobhouse

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ABDULRAHMAN MOHAMED

(RESPONDENT)

v

THE LONDON BOROUGH OF HAMMERSMITH & FULHAM

(APPELLANTS)

ON 1 NOVEMBER 2001

[2001] UKHL 57

LORD SLYNN OF HADLEY

My Lords,

1. This appeal raises questions under the Housing Act 1996 ("the Act") which Henry LJ in the Court of Appeal below [2001] QB 97, 101, para 1 said frequently arose but had not then been resolved by that court. The answers to those questions have important consequences for those who are homeless and who have priority needs; they are no less important for those authorities who are said to be responsible for providing accommodation and who may have applicants with competing needs but insufficient accommodation or finances to provide for all who apply for somewhere to live.

2. The statutory provisions can be summarised shortly. A person who contends that he is homeless with priority needs and eligible for assistance may apply to a local housing authority. The authority receiving such an application must by virtue of section 184 of the Act inquire as to the applicant's eligibility for assistance and must inquire as to what if any duty is owed to that person. The authority may then decide or refuse to provide accommodation but it has also the option of inquiring whether the applicant has a local connection with the district of another housing authority. If they consider that he has but has no connection with its own authority then that authority may refer the application to the other authority.

3. By section 193, if after inquiry 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" they must "secure that accommodation is available for occupation by the applicant" for a minimum period of two years unless they "refer the application to another local housing authority".

4. If a local housing authority would be liable to provide accommodation but consider that the conditions are met for referral of the case to another local housing authority they may notify that other authority of their opinion (section 198).

5. The relevant conditions by virtue of section 198 are that:

6. By section 199(1):

(a)

(b)

(c)

(d)

7. The authority's decision to notify another authority that conditions are met for a referral to the latter authority is subject to review by virtue of section 202 (1) and regulations may be made under section 203 of the Act to provide for the procedure to be followed on such a review.

8. By virtue of the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996 (SI 1996/3122) in force at the time, it was provided that the review should be conducted by an officer senior to the one who took the decision and that it should be carried out "on the basis of facts known to them at the date of the review" (regulation 8): the latter was deleted from the 1999 regulations, the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71).

9. By section 204 of the Act an applicant dissatisfied with the decision on the review may appeal to the county court on a point of law and the county court may confirm, quash or vary the decision.

10. Although Mr Mohamed is the respondent he is not the only person concerned by the appeal. His wife, Mrs Farah, and two sons left Somalia during the civil war in 1992 and went to Kenya. In 1994 Mrs Farah came to England though without their sons. She lived most of the time in flats in Ealing until in January 1998 she moved to live with a friend at an address in the appellant authority's district. The respondent came to England on 31 January 1998 and although in contact with his wife he lived with a friend in the authority's district. On 16 April 1998 they jointly asked the appellant authority for accommodation and were given temporary accommodation first in an hotel and then in a flat in the authority's district. On 11 May they made their formal application as being homeless under the provisions of the Act to which I have referred. On 23 July 1998 the authority told Mrs Farah that they accepted a duty to arrange accommodation for her but that, although she had a local connection with Ealing where she had lived, she had no connection with the appellant authority and on 27 July the applications of both the respondent and his wife were referred to Ealing London Borough Council on the basis that they appeared to have a local connection with Ealing but not with the appellant authority's district. Representations were made to the appellant authority on behalf of both applicants against this decision and a formal application was made for a review of the decision to refer the matter to Ealing.

11. The reviewing officer by letter of 23 September 1998 said that having considered all the matters set out in letters sent on behalf of the applicants during August and in the light of the outcome of the council's inquiries prior to the decision under review he was satisfied to uphold the decision to refer. He said:

12. He did not consider that the respondent's residence in the borough between 31 January and 17 April 1998 was sufficient to give rise to "a local connection in real terms". He did not accept that the existence of relatives in the borough or the need for medical treatment in these two cases established a local connection in view of the proximity of the two boroughs and the ease of passing from one to the other to visit a hospital.

13. He concluded:

14. There was then an appeal to the West London County Court which dismissed the appeal on 17 June 1999. It was Judge Richard Walker's view that the reviewing officer had not erred in law. His reference to there having to be a local connection "in real terms" did not set too high a standard. There had to be a real local connection rather than an artificial or fanciful one. The judge took the view that "the duty of the review is to give fresh consideration to the original application" and that it was wrong to take into account on the review the period between the original decision and the date of the review though on the review there could be taken into account facts relevant to the original decision but not known at that time. The judge said:

15. As to the facts existing at the date of the original decision he concluded that the fact that Mrs Farah's sister had lived for two months in the appellant authority's district was not significant and the fact that the respondent had lived in the borough from 31 January 1998 to 16 April 1998 did not establish the necessary connection. He therefore dismissed the appeal.

16. The Court of the Appeal were firmly of the view that the material date for considering whether an applicant had a local connection was the date the authority reviewed its decision. It was the facts established at that stage which the authority should take into account on its review. A local connection developed during the period between the initial decision and the review could compatibly with the purposes of the legislation be taken into account. They also held that interim accommodation provided by the authority pending decision and review could constitute normal residence "of his choice".

17. Thus on this appeal it is accepted that the respondent was homeless, was eligible for assistance, had a privileged need and was not intentionally homeless. The question is accordingly whether it can be said that he had no local connection with the district of the appellant authority and in that regard the principal question is whether it can be said that he is, or in the past was, normally resident in the district of that authority. The authority's principle argument is that the occupation of interim accommodation pending a decision of his application under the Act is not (ie cannot be) "normal residence" for the purposes of section 199(1)(a) of the Act. The respondent has lost his normal residence and has asked for and was given only temporary shelter until replacement accommodation is provided. At the relevant time accordingly he had no normal residence so that he could not establish a local connection on the ground of residence. For that purpose "normally resident" is to be given the same meaning as ordinarily resident. In R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, 343 which was concerned with ordinary residence it was said that that phrase referred to:

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.

19. Although the point is not conclusive counsel for he respondent are entitled as they do to point to the fact that Parliament has specifically provided in section 199 that residence due to service in the armed forces or through detention under statutory powers is not "of choice" and the Secretary of State may specify other circumstances in which residence in a district is not to be treated as of a person's own choice, but nothing has been done to exclude residence under the homelessness provisions with which this appeal is concerned as not being of a person's own choice. If it had been intended to exclude such accommodation it would have been easy to have done so in the section or by the exercise of powers by the Secretary of State under section 119(5).

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, eg years" though it recognises that local connection through other factors specified (eg 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] QB 97, 109, para 45 that although there is a re-distributive 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.

22. In R v Eastleigh Borough Council, Ex p Betts [1983] 2 AC 613, 628 Lord Brightman stressed that "the real exercise will be to decide whether the normal residence has been such as to establish a subsisting local connection". In my opinion the occupation of interim accommodation can be taken into account in deciding whether such a local connection exists.

23. A second question which has been raised is whether the correct date to decide whether a person has a local connection is the date of the making of his application or the date of the decision or, if there is a review, the date of the review. It seems to me plain that since the question for the local housing authority is whether the applicant "has a local connection" that must mean such a connection at the date of decision or review, whether in the meantime the applicant has acquired or lost (by moving away) his local connection.

24. A linked question which arises is as to the material which may be looked at on the review. The appellant authority contends that the reviewing officer may look at facts known to the original decision maker and those which existed before the time of the original decision but were not known to the original decision maker but he may not look at facts which have come into existence subsequently. The respondent on the other hand says that the reviewing officer can and should look at all the circumstances at the time of the review. In R v Southwark London Borough Council, Ex p Hughes (1998) 30 HLR 1082, in a case decided under the Housing Act 1985, before a statutory right of review was given, Turner J said, at p 1089:

25. The present case is not concerned with whether the applicant tenants were homeless but whether there was a connection with Hammersmith or whether the applicants had a connection with Ealing and not with Hammersmith. It seems to me, however, plain that the approach should be as stated by Turner J and perhaps with more force since there is now a statutory right of review. I find nothing in the statutory language which requires the review to be confined to the date of the initial application or determination. The natural meaning of the language in section 184(2) in requiring the local housing authority to inquire whether the applicant "has" a local connection is that they should consider that at the date of the review decision. It is to be remembered that the process is an administrative one at this stage and there can be no justification for the final administrative decision of the reviewing officer to be limited to the circumstances existing at the date of the initial decision.

26. The decision of the reviewing officer is at large both as to the facts (ie as to whether the three conditions in section 198(2) of the Act are satisfied) and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision.

27. As already shown the reviewing officer took into account in his letter whether there had been an essential compassionate, social or support need. The Court of Appeal held that this was a clear misdirection in law. Requiring that the applicant must show an essential compassionate, social or support need to live in the district was putting the test for local connection too high.

28. The appellant authority contends that this was not a separate test but an overall review of all the other matters which had been considered as to whether local connection by reference to special circumstances had been shown and that accordingly there was no misdirection. There is some force in this but it seems to me that the reviewing officer was using this additional test as part of his consideration as to whether there was a local connection by reason of special circumstances. On that basis as I understand it the appellant authority accepts that there was a misdirection as the Court of Appeal held. I agree with the Court of Appeal on this matter.

29. I would accordingly dismiss the appeal.

LORD STEYN

My Lords,

30. I have read the opinion of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also dismiss the appeal.

LORD HOFFMANN

My Lords,

31. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also dismiss the appeal.

LORD HUTTON

My Lords,

32. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives, and with which I agree, I would also dismiss this appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

33. For the reasons given by my noble and learned friend, Lord Slynn of Hadley, I agree that this appeal should be dismissed.