|
HOUSE OF LORDS
SESSION 2008-09
[2009] UKHL 36
on appeal from: [2008] EWCA Civ 1228 [2008] EWCA Civ 378
OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Birmingham City Council (Appellants) v Ali (FC) and
others (FC) (Respondents)
Moran (FC) (Appellant) v Manchester City Council
(Respondents)
Appellate Committee
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Counsel
Appellant (Birmingham City Council):
Ashley Underwood QC
Catherine Rowlands
(Instructed by Birmingham City Council)
Appellant: (Moran):
Jan Luba QC
Adam Fullwood
(Instructed by Shelter Greater Manchester Housing Centre
)
Interveners: Women’s Aid Federation:
Stephen Knafler
Liz Davies
(Instructed by Sternberg Reed )
Respondent: (Ali):
Jan Luba QC
Zia Nabi
(Instructed by Community Law Partnership)
Respondent (Manchester City Council):
Clive Freedman QC
Zoe Thompson
(Instructed by Manchester City Council)
Interveners: Secretary of State for Communities and Local
Government:
Martin Chamberlain
(Instructed by Treasury Solicitors)
Hearing dates:
26 JANUARY, 28 and 29 APRIL 2009
ON
WEDNESDAY 1 JULY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Birmingham City Council (Appellants) v Ali (FC) and
others (FC) (Respondents)
Moran (FC) (Appellant) v Manchester City Council
(Respondents)
[2009] UKHL 36
LORD HOPE OF CRAIGHEAD
My Lords,
- I have had the privilege of reading in draft
the opinion which has been prepared by my noble and learned friend
Baroness Hale of Richmond, to which my noble and learned friend Lord
Neuberger of Abbotsbury has contributed. I agree with it, and for the
reasons they have given I would allow both appeals.
- As Baroness Hale explains, both cases concern
the duties of local housing authorities towards homeless people under Part
VII of the Housing Act 1996. The question which lies at the heart of the
Birmingham case is whether it is a lawful discharge of the housing
authority’s duty under section 193(2) of the Act to leave a family in
accommodation which requires them to be treated as homeless under section
175(3) because it is accommodation which it is not reasonable to expect
them to continue to occupy. In the Manchester case it is how the
provisions of Part VII are to be applied to a woman who flees domestic
violence and is provided with a place in a women’s refuge. The cases were
heard separately on different dates, but it was obvious from the outset
that there was much common ground. So judgment in the Birmingham
case was reserved until after the hearing of the Manchester case,
and it makes good sense for them now to be dealt with in a single
judgment. I wish to pay tribute to counsel in both cases for their
assistance, which included the making of further written submissions in
the Birmingham case in the light of the written and oral
submissions that were made to the Committee in the Manchester
case.
- I wish also to associate myself particularly
with Baroness Hale’s observation in para 36 that both sections 175(3) and
191 look to the future as well as the present. I would make the same point
about the duty in section 193(2), which requires the housing authority to
secure that accommodation “is available for occupation by the applicant".
The equivalent provision in section 31(2) of the Housing (Scotland) Act
1987 uses the phrase “becomes available". In my opinion the effect of
these two provisions is the same. In Codona v Mid-Bedfordshire District
Council [2004] EWCA Civ 925, [2005] LGR 241, para 38, Auld LJ said
that the duty of the authority was to secure the availability of suitable
accommodation within a reasonable period of time, the reasonableness of
the period depending on the circumstances of each case and on what
accommodation was available. Collins J took a different approach in the
Birmingham case: R (Aweys) v Birmingham City Council [2007] EWHC 52 (Admin). He said that it was a breach of the authority’s duty for
it to require families to remain in unsuitable accommodation even for a
short time. I prefer the approach which Auld LJ adopted. But he
recommended discussion leading to agreement, not compulsion.
- In the Court of Appeal Arden LJ disagreed with
the way the duty was expressed in Codona: R (Aweys) v Birmingham
City Council [2008] EWCA Civ 48, [2008] 1 WLR 2305, paras 62-65. She
said that the duty in section 193(2) was expressed in terms of producing a
result in the context of homelessness, which of its nature requires some
urgent action. But the words of the subsection need to be seen in their
overall context. The urgency of the action that is needed will vary from
case to case, including the way the authority fulfils its interim duty
under section 188(1). Each of these two duties needs to be seen in the
light of what can be done in the performance of the other. There may be
cases where it would not be unreasonable for a homeless person to be
expected to continue to occupy for a short period accommodation which it
would not be reasonable for him to occupy for a long time while the
authority looks for accommodation which will release it from its duty
under section 193(2). I agree with Baroness Hale that the court must have
regard to the practicalities of the situation. As Auld LJ said in
Codona, para 38, the court will not make an order to force a local
authority to do the impossible. On the other hand it may well feel that it
is proper for it to step in where the time that is allowed to elapse
becomes intolerable. The point which I wish to stress is that the
description of the duty in Codona is, with respect, the one that
should be adopted in preference to that recommended by Arden LJ.
LORD SCOTT OF FOSCOTE
My Lords,
- I, too, have had the advantage of reading in
draft the opinion prepared by my noble and learned friend Baroness Hale of
Richmond. For the reasons given in that opinion, with which I am in full
agreement, I, too, would allow both these appeals. I want to express my
agreement also with the views of my noble and learned friend Lord Hope of
Craighead expressed in paragraphs 3 and 4 of his opinion.
LORD WALKER OF GESTINGTHORPE
My Lords,
- I have had the great advantage of reading in
draft the opinion of my noble and learned friend by Baroness Hale (in
collaboration with my noble and learned friend Lord Neuberger of
Abbotsbury). I am in full agreement with it and for the reasons which they
give I would allow these appeals and make the orders proposed.
BARONESS HALE OF RICHMOND
My Lords,
- My noble and learned friend Lord Neuberger of
Abbotsbury and I have both contributed to the drafting of this opinion,
which embodies the views which we both share.
- On the surface, these two cases seem poles
apart, except that they both concern the duties of local housing
authorities towards homeless people under Part 7 of the Housing Act 1996.
In the Birmingham case, six families, each with at least six
children, were living in accommodation which had become seriously
over-crowded. The City Council accepted that they were unintentionally
homeless and in priority need. Nevertheless the families were left in that
accommodation for many months or even years before permanent accommodation
was found for them. In the Manchester case, a mother left the
family home with her two children because of her partner’s violence and
went to a women’s refuge. A few weeks later she was evicted from the
refuge because of her behaviour towards the staff. The City Council gave
her temporary accommodation but soon decided that although she was
homeless and in priority need she had become homeless intentionally.
- In each case, several issues have been raised,
but common to both is the meaning of the phrase “accommodation which it
would be reasonable for him to continue to occupy” in section 175(3) of
the 1996 Act. Does this mean that a person is only homeless if it would
not be reasonable for him to stay where he is for another night? Or does
it incorporate some element of looking to the future, so that a person may
be homeless if it is not reasonable to expect him to stay where he is
indefinitely or for the foreseeable future? This question did not arise
under the homelessness legislation as originally enacted and some account
of how that legislation has evolved is necessary to understanding how the
argument has arisen.
- Under the Housing (Homeless Persons) Act
1977, a person were homeless if he had no accommodation which he and his
family were entitled to occupy, by virtue of some interest, court order,
express or implied licence or statutory right to occupy (1977 Act, s
1(1)). There was no reference in the definition of homelessness to whether
or not it was reasonable for him to continue to occupy the accommodation
to which he was entitled. Thus in Puhlhofer v Hillingdon London Borough
Council [1986] AC 484, this House decided that a couple living with
their two young children in one room in a guest house without cooking or
laundry facilities were not homeless within the meaning of the Act.
However intolerable their living conditions were, there was no requirement
that their accommodation be appropriate or reasonable, as long as it could
properly be described as accommodation and was available for them to
occupy.
- Hence under the 1977 Act none of the
Birmingham families would have been regarded as homeless. Curiously,
however, if they had taken the plunge and left their overcrowded
accommodation, they might not have been found to be intentionally
homeless. The 1977 Act provided that a person became homeless
intentionally if he deliberately did or failed to do something which
resulted in him ceasing to occupy accommodation “which it would have been
reasonable for him to continue to occupy” (1977 Act, s 17(1)). So leaving
their accommodation and sleeping on the streets might mean that the
council was under a duty to find them accommodation.
- Parliament reacted to the Puhlhofer
decision by inserting new provisions into the Housing Act 1985, Part
III of which had replaced the 1977 Act. First, it was provided that “a
person shall not be treated as having accommodation unless it is
accommodation which it would be reasonable for him to continue to occupy”
(1985 Act, s 58(2A), inserted by Housing and Planning Act 1986, s
14(1),(2)). Second, it was provided that, in determining whether it would
be reasonable for a person to continue to occupy accommodation, regard
could be had to the general circumstances prevailing in relation to
housing in the district (1985 Act, s 58(2B), inserted by 1986 Act, s
14(1),(2)). It is because of the successor to these provisions that the
Birmingham families were accepted as homeless although they did have some
sort of roof over their heads.
- On the other hand, the 1977 Act did make
special provision for victims of domestic violence. Even if a person had
accommodation which she was entitled to occupy, she was also homeless if
she could not gain entry to it or if it was probable that her occupation
of it would lead to violence (or threats which were likely to carried out)
against her from some other person living there (1977 Act, s 1(2)(a) and
(b)). In R v Ealing London Borough Council, ex p Sidhu (1982) 80
LGR 534, a woman had left her home because of domestic violence and gone
to stay in a refuge. The local authority argued that she was not homeless
because she had accommodation available to her in the refuge. That
argument got short shrift from Hodgson J, who did not regard a crisis
refuge of this sort as accommodation within the meaning of the 1977 Act.
It was essential that women who had gone to refuges were still seen as
homeless. Otherwise the refuges would have to give them 28 days notice
when they came in so that they would be under threat of homelessness
(under s 1(3) of the 1977 Act). This would be totally undesirable and add
stress to stress. The protection of the Act would be watered down or
removed from a whole class of people whom it was set up to help. At that
date it was not possible for the judge to hold that it was not reasonable
for a woman to continue to occupy her place in the refuge. That humane
decision so obviously accorded with the purpose of the 1977 Act that it
has never been expressly overruled, although we have heard much argument
about whether it could possibly have survived the decision of this House
in Puhlhofer.
The present law
- Part III of the 1985 Act has now been
replaced by Part 7 of the 1996 Act. Part 7 (which contains sections 175 to
218) deals with “Homelessness” whereas Part 6 (containing sections 159 to
174) is concerned with “Allocation of Housing Accommodation". As was
explained by Lord Hoffmann in relation to the predecessor legislation, in
R v Brent London Borough Council, Ex p Awua [1996] AC 55, 71G-72B,
it is important when considering an authority’s duty under Part 7 not to
confuse it with their duty under Part 6.
- In the more than twenty years which have
passed since then, the stock of local authority accommodation available
under Part 6 has been substantially diminished, so that, in many areas, it
has ceased to exist. Nonetheless, many authorities still own housing
accommodation, and Part 6 contains the statutory regime that applies to
its allocation. Section 167 requires every authority to have an allocation
scheme, to which they must adhere. Subsection (2) requires every such
scheme to accord “reasonable preference” to certain categories of person.
They include “people who are homeless (within the meaning of Part 7)",
other people to whom there is a duty to provide accommodation under Part
7, people in housing which is insanitary, overcrowded or the like, and
people who need to move on welfare grounds. However, Part 6 is concerned
with the local authority’s policy in allocating housing, whereas Part 7 is
concerned with their duties towards individual people who face the
immediate problem of homelessness.
- Homelessness and threatened homelessness are
defined in section 175:
“(1) A person is homeless if he has no accommodation
available for his occupation, in the United Kingdom or elsewhere, which he
-
(a) is entitled to occupy by virtue of an interest in it or
by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or
rule of law giving him the right to remain in occupation or restricting
the right of another person to recover possession.
(2) A person is also homeless if he has accommodation but -
(a) he cannot secure entry to it, or
(b) [relates to moveable living quarters without a place to
park or moor].
(3) A person shall not be treated as having accommodation
unless it is accommodation which it would be reasonable for him to
continue to occupy.
(4) A person is threatened with homelessness if it is likely
that he will become homeless within 28 days.”
Section 176 deals with other members of the family or
household:
“Accommodation shall be regarded as available for a person’s
occupation only if it is available for occupation by him together with
-
(a) any other person who normally resides with him as a
member of his family, or
(b) any other person who might reasonably be expected to
live with him.
References in this Part to securing that accommodation is
available for a person’s occupation shall be construed accordingly.”
Further provision as to whether it is reasonable to continue
to occupy accommodation is made in section 177 (as amended by the
Homelessness Act 2002):
“(1) It is not reasonable for a person to continue to occupy
accommodation if it is probable that this will lead to domestic violence
or other violence against him, or against -
(a) a person who normally resides with him as a member of
his family, or
(b) any other person who might reasonably be expected to
reside with him.
(1A) For this purpose ‘violence’ means -
(a) violence from another person; or
(b) threats of violence from another person which are likely
to be carried out…
(2) In determining whether it would be, or would have been,
reasonable for a person to continue to occupy accommodation, regard may be
had 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.”
Thus the risk of violence is now provided for as an example
of the “reasonableness” of continuing to occupy the accommodation
available.
The Secretary of State may also specify matters to be taken
into account in deciding reasonableness (s 177(3) and Homelessness
(Suitability of Accommodation) (England) Order 2003).
- Homelessness gives rise to a graduated series
of duties on the local housing authority. If the authority have reason to
believe that someone who applies to them for accommodation or help with
accommodation may be homeless or threatened with homelessness, they must
make inquiries in order to satisfy themselves whether he is eligible for
their help and if so what duty, if any, they owe to him under Part 7 (1996
Act, s 184). Certain persons from abroad and asylum seekers are not
eligible for help under Part 7 (ss 185 and 186). If the authority have
reason to believe that an applicant “may be homeless, eligible for
assistance and have a priority need", they must secure that accommodation
is available for his occupation pending a decision as to what duty is owed
(s 188(1)). Priority need is then defined, and includes families with
dependent children (s 189(1)(b)). If the local authority decide that the
applicant is homeless, eligible for assistance and in priority need, but
became homeless intentionally, they must secure that accommodation is
available for him “for such period as they consider will give him a
reasonable opportunity” of finding his own accommodation and provide him
with advice and assistance in doing so (s 190(1) and (2)). We are told
that up to six weeks is usually thought enough for this although there is
no statutory limit. If an intentionally homeless person does not have a
priority need, the authority only have to provide him with advice and help
to find somewhere for himself (s 190(3)). If the local authority are
satisfied that an applicant is homeless and has a priority need, and are
not satisfied that he became homeless intentionally, then they “shall
secure that accommodation is available for occupation by the applicant” (s
193(1) and (2), unless they are able to refer the applicant to another
local authority under s 198).
- Whether the authority are securing interim
accommodation under section 188(1) pending a decision, or securing
accommodation after the decision has been made under section 190(2) or
193(2), they may provide the accommodation themselves or secure that it is
provided by someone else. However, the accommodation secured has to be
“suitable” (1996 Act, s 206(1)). In deciding what is “suitable” the
council must “have regard” to Parts 9 and 10 of the Housing Act 1985 and
Parts 1 to 4 of the Housing Act 2004 (which relate to slum clearance and
over-crowding) and also to matters specified by the Secretary of State
(1996 Act, s 210(1) and (2)). Clearly, however, what is regarded as
suitable for discharging the interim duty may be rather different from
what is regarded as suitable for discharging the more open-ended duty in
section 193(2); but what is suitable for discharging the “full” duty in
section 193(2) does not have to be long life accommodation with security
of tenure such as would arise if the family were allocated the tenancy of
a council house under the council’s allocation policy determined in
accordance with Part 6 of the 1996 Act. It is expressly provided that a
person who is secured accommodation under Part 7 of the 1996 Act does not
become a secure tenant unless the council say so (Housing Act 1985, Sched
1, para 4).
- The duty under section 193(2) is the highest
duty which is owed under Part 7. From 1996 until amendments made by the
Homelessness Act 2002, that duty lasted for a fixed period of two years
(with a power thereafter). Now, however, it is unlimited in time but comes
to an end in the various ways which are listed in section 193(5) to (8).
In summary, these involve accepting an offer of private housing or social
housing under Part 6 of the 1996 Act, refusing a final offer under Part 6,
leaving voluntarily for other accommodation, or becoming homeless
intentionally.
- Becoming homeless intentionally is defined in
section 191, the material part of which for our purposes is section
191(1):
“A person becomes homeless intentionally if he deliberately
does or fails to do anything in consequence of which he ceases to occupy
accommodation which is available for his occupation and which it would
have been reasonable for him to continue to occupy.”
It will thus be apparent that section 175(3) and section
191(1) are counterparts. A person is homeless even if he has accommodation
but it would not be reasonable for him to continue to occupy it. A person
becomes homeless intentionally if he is responsible for losing
accommodation which it would have been reasonable for him to continue to
occupy.
- The main issue in the Birmingham case,
therefore, is whether it was open to the council to accept that it was not
reasonable for a family to continue to occupy their present home but to
accommodate them there until something appropriate for them could be
found. One of the issues in the Manchester case is whether it was
reasonable to expect Ms Moran to continue to occupy her place in the
refuge, so that she became homeless intentionally when she behaved in such
a way that she was evicted. However, there are additional issues in each
case.
The Birmingham cases
- Each of the six applicants applied to the
council as a homeless person. Each had a large family and needed a four or
five bedroomed property to be properly housed. Birmingham is the largest
housing authority in the country with a long waiting list for social
housing. It also receives around one fifth of all the homelessness
applications in the country. Inner city clearance programmes and the right
to buy have reduced its stock of council housing. The supply of large
houses needed by families like these is very limited. Each of these
families has now been properly housed, but it was a struggle.
- The council eventually accepted that each of
these families was homeless and was owed the “full” duty under section
193(2). In four cases this was because it was not reasonable to expect
them to continue to occupy their current homes, which were over-crowded or
in disrepair. Mr Aweys, his wife and six children were living in the two
bedroomed council flat which he had been allocated when he arrived alone
as a refugee from Somalia. It took a year for the council to accept that
he was owed the “full” duty and a further 16 months for him to be offered
a suitable house. Mr Adam also occupied a two bedroomed council flat with
his wife and initially five children. The council accepted that he was
owed the “full” duty in November 2005. A sixth child was born in 2007.
Various properties were offered but either withdrawn or unsuitable. The
family were given permanent accommodation in January 2008. Ms Sharif was
more fortunate. She was tenant of a three bedroomed flat in which eleven
people were living. The council accepted that it owed her the “full” duty
in February 2006 and she was offered permanent accommodation ten months
later in December 2006. Ms Omar was not a council tenant but had an
assured shorthold tenancy when she applied in 2004 because of
over-crowding, rat infestation and damp. The council finally accepted that
she was owed the “full” duty in mid 2006 but that duty came to an end when
she refused an offer and she later found accommodation of her
own.
- In two cases, the applicants were provided
with accommodation by the council but it was later accepted that this was
not suitable for them. Ms Abdulle, with her husband and five children, was
evicted from privately owned accommodation in 2003 and the council
accepted that the “full” duty was owed. It took some months before they
were provided with temporary accommodation. In June 2004 they were offered
a three bedroomed property which they accepted while requesting a review
of its suitability. Two more children were born. In February 2008 they
were still waiting for an offer. Mr Ali is disabled. In June 2002, the
council accepted the “full” duty towards him, his wife and their four
children, one of whom is severely disabled. In December they were offered
a three bedroomed property which Mr Ali accepted while challenging its
suitability. Two more children have since been born. Properties were
offered but not found suitable. They eventually moved into suitable
permanent accommodation in December 2008.
- In essence the council’s approach was that
they could accept that the family was homeless because of over-crowding or
the condition of the property they were currently occupying, and that the
“full” duty under section 193(2) was owed because the family was in
priority need and had not become homeless intentionally, but that they
could discharge their duty by leaving the family in their existing home
until suitable permanent accommodation could be found. Coupled with this
was the council’s policy for allocating the limited stock of social
housing available to them for permanent letting. Homeless households whom
the council had placed in temporary accommodation were placed in the
highest priority band A, while homeless households for whom the council
had not arranged temporary accommodation, including families such as
these, were placed in band B.
- Each applicant sought judicial review of the
council’s alleged failure to perform the duty under section 193(2) and of
the council’s allocation policy. Collins J granted a declaration that the
allocation policy was unlawful in that it failed to secure reasonable
preference for homeless applicants to whom the “main housing duty” under
section 193(2) was owed. He also held that to include a person in the
allocation scheme was not enough to discharge the section 193(2) duty.
Suitable accommodation had to be provided directly or within a reasonably
short time. Hence he made mandatory orders that within a week the council
make offers of suitable accommodation to the families who did not yet have
it: [2007] EWHC 52 (Admin). In February 2008, the Court of Appeal
dismissed the council’s appeal: [2008] EWCA Civ 48, [2008] 1 WLR 2305.
- The issues for this House, therefore, are (1)
whether accommodation which it is not reasonable to expect the applicant
to continue to occupy can nevertheless be suitable accommodation for the
purposes of the duty under section 193(2); (2) whether the council’s
allocation policy was unlawful in giving greater priority to people in
temporary accommodation than to people left in accommodation which it was
not reasonable for them to occupy; and (3) the remedies for breach of the
duty under section 193(2).
The Manchester case
- Ms Moran is a young woman with two children,
who were aged three and two at the time of the relevant events in 2006.
She also has mental health problems and “chronic poor coping skills". She
had a secure tenancy of a house in Moss Side, Manchester, which she left
with her two children on 20 September 2006 because of domestic violence
from her former partner. (She had done so twice before.) She went first to
Trafford Women’s Aid but moved on 18 October 2006 to North Manchester
Women’s Aid to be nearer to her mother and further from her partner.
- She signed a licence agreement which did not
entitle her to any particular room but allowed her to stay there “as long
as you need it while you decide what to do". Because it was a safe house
for women and children escaping domestic violence, there were some special
rules - such as not to bring any men into the refuge or the surrounding
area, not to have any visitors or to give the address to anyone, and not
to have contact with the neighbours or disclose the nature of the
building. Breach of the rules could lead to withdrawal of the licence, as
could failure to pay the accommodation charge, violence, threatening
behaviour, harassment or any behaviour which caused nuisance or annoyance
to residents, visitors or staff. All members of staff had authority to ask
her to leave immediately.
- On 30 October 2006, Ms Moran was evicted from
the refuge. The precise facts have never been found but she had an
argument with the staff, the police were called and she was removed. She
applied to the council as a homeless person the same day. The council gave
her temporary accommodation pending their decision. But next day they
decided that because of her conduct she had made herself intentionally
homeless (and therefore would have to leave her temporary accommodation in
three weeks’ time). On 6 March 2007, the decision was upheld on review,
the reviewing officer determining that the refuge was accommodation
available to Ms Moran and her family which it was reasonable for her to
continue to occupy.
- On appeal to the county court, Mr Recorder
Rigby held that the reviewing officer had failed to take account of the
decision in Sidhu and the advice in paragraph 8.34 of the then Code
of Guidance:
“[S]ome types of accommodation, for example, women’s
refuges, direct access hostels and night shelters, are intended to provide
very short term temporary accommodation in a crisis and it should not be
regarded as reasonable to continue to occupy such accommodation in the
medium and longer term.”
Although he did not feel able to say that, as a matter of
law, a refuge could not be “accommodation which it would have been
reasonable for him to continue to occupy” within the meaning of section
191(1), “there must be a very strong inference when interpreting this
section that a women’s refuge is most unlikely to be such accommodation.”
He therefore quashed the decision and sent it back to be decided by the
reviewing officer once more.
- On appeal, the Court of Appeal held that
Sidhu was wrong and the Guidance should be reconsidered. A refuge
could be accommodation which it would be reasonable to continue to occupy.
The court gave guidance as to the factors to be taken into account in
deciding whether it was (paras 49 and 50). On the facts of this particular
case, the court held that the reviewing officer could not reasonably have
come to any other decision: [2008] EWCA Civ 378, [2008] 1 WLR 2387.
- The first issue before this House,
therefore, is whether a women’s refuge is “accommodation” at all for the
purposes of section 175 of the 1996 Act. If it is accommodation, the
second issue is whether it is accommodation which it would be reasonable
for the person to continue to occupy. Subsidiary issues are, if it is
capable of being such accommodation, what factors should be taken into
account in assessing this, and finally whether it was open to the
reviewing officer to find as she did.
“Reasonable to continue to occupy”
- It is convenient to deal with this issue
first because, if Mr Ashley Underwood QC, who appears for Birmingham, and
Mr Jan Luba QC, who appears for Ms Moran, are right about it, it provides
the solution to both cases. Does section 175(3) mean that a person is only
homeless if she has accommodation which it is not reasonable for her to
occupy another night? Or does it mean that she can be homeless if she has
accommodation which it is not reasonable for her to continue to occupy for
as long as she would occupy it if the local authority did not
intervene?
- The Court of Appeal in the Manchester case,
the courts below in the Birmingham case, and perhaps other courts before
them, have assumed that the former is the case: that section 175(3) is
concerned with the reasonableness of present occupation. Obviously, once
it is unreasonable for the person to stay there one more night, section
175(3) is met; the person is homeless and cannot be intentionally homeless
if she leaves.
- However, the language suggests that both
sections 175(3) and 191(1) are looking to the future as well as to the
present. They do not say “which it is reasonable for him to occupy”
or “which it was reasonable for him to occupy". They both use the
words “continue to". This suggests that they are looking at occupation
over time. This suggestion is reinforced by the words “would be” and
“would have been". These again suggest an element of looking to the future
as well as to the present. They contrast with section 177(1) which
provides that “it is not reasonable” to continue to occupy accommodation
where there is a risk of violence.
- These linguistic reasons are reinforced by
the policy of the Act. The words defined in section 175 are “homeless” and
“threatened with homelessness". The aim is to provide help to people who
have lost the homes to which they were entitled and where they could be
expected to stay. Section 175(3) was introduced for a case like the
Puhlhofers, who could no doubt have been expected to stay a little while
longer in their cramped accommodation, but not for the length of time that
they would have to stay there if the local authority did not intervene.
- In the Birmingham case, this
interpretation has the advantage that the council can accept that a family
is homeless even though they can actually get by where they are for a
little while longer. The council can begin the hunt for more suitable
accommodation for them. Otherwise the council would have to reject the
application until the family could not stay there any longer. The likely
result would be that the family would have to go into very short term
(even bed and breakfast) accommodation, which is highly
unsatisfactory.
- It also has the advantage that the family do
not have to make repeated applications. If their application is rejected
on the ground that it is reasonable for them to stay one more night, they
cannot apply again until there is a different factual basis for the
application. How are they to judge whether the council will consider that
the tipping point has been reached, when this is such an uncertain
event?
- Furthermore, while it is true that, if a
family have no home and are on the streets, the authority’s duty under
section 188 to provide them with temporary accommodation immediately
accords with practicality and no doubt with the family’s wishes, the
position will often be different in a case where the family have
accommodation. They might well prefer to remain where they were while
their application was being considered. As Collins J said at first
instance (para 23), “families may sometimes prefer to remain in unsuitable
accommodation for a short time rather than move to temporary
accommodation” and there should be “discussion leading to agreement and no
compulsion". However, the combination of section 188(1) and section 206(1)
means that the council’s interim duty under section 188 is to provide
“suitable” accommodation. If an applicant is occupying accommodation which
it is unreasonable for him to continue occupying for even one night, it is
hard to see how such accommodation could ever satisfy section 188(1).
Section 175(3) obviously includes such cases but does not have to be
limited to them.
- This then feeds into the duty under section
193. As Lord Hoffmann said in Awua [1996] AC 55, 68A-C:
“[T]here 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. … [T]he 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.”
Those observations were directed to the question of when it
ceases to be reasonable for a person to continue to occupy accommodation
in the context of the meaning of “accommodation", but they apply equally
to the point at issue here.
- Given that an authority can satisfy their
“full” housing duty under section 193(2) by providing temporary
accommodation (which must of course be followed by the provision of
further accommodation, so long as the section 193(2) duty survives), these
observations clearly do not only apply to section 188. They emphasise that
accommodation which may be unreasonable for a person to occupy for a long
period may be reasonable for him to occupy for a short period.
Accordingly, there will be cases where an applicant occupies accommodation
which (a) it would not be reasonable for him to continue to occupy on a
relatively long term basis, which he would have to do if the authority did
not accept him as homeless, but (b) it would not be unreasonable to expect
him to continue to occupy for a short period while the authority
investigate his application and rights, and even thereafter while they
look for accommodation to satisfy their continuing section 193 duty.
- In the Manchester case, this
interpretation has the advantage that a woman who has lost her home
because of domestic violence remains homeless even though she has a roof
over her head in the refuge. We have been greatly assisted by the
submissions of Mr Stephen Knafler on behalf of the Women’s Aid Federation
of England, who are understandably worried about the “bed-blocking” effect
if women in refuges are no longer regarded as homeless. They point out
that a refuge is not simply crisis intervention for a few nights. It is a
safe haven in which to find peace and support. But it is not a place to
live. There are rules which are necessary for the protection of residents
but make it impossible to live a normal family life. It is a place to
gather one’s strength and one’s thoughts and to decide what to do with
one’s life. The choices facing a woman who flees domestic violence are
complex and difficult. Should she return home in the hope that she will be
safe? Is this what her children would like her to do (“he is their father
after all”)? Should she risk taking court proceedings for a
non-molestation order to give her some protection or will this simply
inflame matters further? Should she take proceedings for an occupation
order to exclude him from the home? Dare she take the risk that she may
not win (if the court decides the remedy is too “draconian”)? Should she
make a complaint to the police and have him prosecuted? Can she predict
the outcome with enough confidence to make it safe for her to do this?
Does she really want him punished anyway (“it’s only the drink that does
it”)? Is she ready to accept that he will never change, make the break and
start a new life in a new home?
- It was no doubt for all these reasons that
Hodgson J instinctively felt, in our view rightly, that Parliament did not
intend that a woman who left her violent partner and found temporary
shelter in a women’s refuge should no longer be considered homeless. The
refuge was a mere staging post until she had decided where to go from
there. Hodgson J quoted a judge in the county court who had said that it
was important that refuges were treated as temporary crisis accommodation
and that women living in refuges were still homeless under the terms of
the Act. If they were not, it would be necessary for refuges to issue
immediate 28 days’ notice so that they would be “threatened with
homelessness". “This would be totally undesirable and would simply add
stress to stress". The Act would be watered down and its protection
removed “from a whole class of persons that it was set up to help and for
whom it was extremely important” (Sidhu, p 53).
- But when Sidhu was decided, the
forerunner of section 175(3) had not yet been enacted. There was no tool
available to the judge to enable him to decide that she remained homeless
apart from deciding that the refuge was not “accommodation” at all. It
could be (although who can say?) that the same perception that the outcome
in Sidhu was right explains why it was not overruled in
Puhlhofer, although it was several times cited to their lordships
and is hard to reconcile with their decision.
- However, another tool is now available and in
our view it is proper for a local authority to decide that it would not be
reasonable for a person to continue to occupy the accommodation which is
available to him or her, even if it is reasonable for that person to
occupy it for a little while longer, if it would not be reasonable for the
person to continue to occupy the accommodation for as long as he or she
will have to do so unless the authority take action.
- This does not mean that Birmingham were
entitled to leave these families where they were indefinitely. Obviously,
there would come a point where they could not continue to occupy for
another night and the council would have to act immediately. But there is
more to it than that. It does not follow that, because that point has not
yet been reached, the accommodation is “suitable” for the family within
the meaning of section 206(1). There are degrees of suitability. What is
suitable for occupation in the short term may not be suitable for
occupation in the medium term, and what is suitable for occupation in the
medium term may not be suitable for occupation in the longer term. The
council seem to have thought that they could discharge their duty under
section 193(2) by putting these families on the waiting list for permanent
council accommodation under their Part 6 allocation scheme. But the duty
to secure that suitable accommodation is available for a homeless family
under section 193(2) is quite separate from the allocation of council
housing under Part 6. There are many different ways of discharging it, and
if a council house is provided, this does not create a secure tenancy
unless the council decides that it should. As we have already pointed out,
the suitability of a place can be linked to the time that a person is
expected to live there. Suitability for the purpose of section 193(2) does
not imply permanence or security of tenure. Accommodation under section
193(2) is another kind of staging post, along the way to permanent
accommodation in either the public or the private sector.
- Hence Birmingham were entitled to decide that
these families were homeless even though they could stay where they were
for a little while. But they were not entitled to leave them there
indefinitely. There was bound to come a time when their accommodation
could no longer be described as “suitable” in the discharge of the duty
under section 193(2).
- It may be that, in some, or conceivably all,
of the Birmingham cases, a critical examination of the facts would
establish that the council were at some point in breach of their duty
under Part 7 of the 1996 Act. Thus the time it has taken to find Mr Ali
suitable accommodation may well be beyond what is defensible. While the
council were entitled in principle to leave the families in their current
accommodation for a period notwithstanding that it was accepted that that
accommodation “would [not] be reasonable for [them and their families] to
continue to occupy", it must be a question, which turns on the particular
facts, whether, in any particular case, the period was simply too long.
However, the basis upon which the applicants in the Birmingham cases
argued their claims (and succeeded before Collins J and the Court of
Appeal) meant that it was unnecessary to consider the detailed facts of
their respective cases. Accordingly, once that line of argument is
rejected, there is no longer any basis for a decision in their favour.
- It is right to face up to the practical
implications of this conclusion. First, there is the approach to be
adopted by a court, when considering the question whether a local housing
authority have left an applicant who occupies “accommodation which it
would [not] be reasonable for him to continue to occupy” in that
accommodation for too long a period. The question is of course primarily
one for the authority, and a court should normally be slow to accept that
the authority have left an applicant in his unsatisfactory accommodation
too long. In a place such as Birmingham, there are many families in
unsatisfactory accommodation, severe constraints on budgets and personnel,
and a very limited number of satisfactory properties for large families
and those with disabilities. It would be wrong to ignore those pressures
when deciding whether, in a particular case, an authority had left an
applicant in her present accommodation for an unacceptably long
period.
- Nonetheless, there will be cases where the
court ought to step in and require an authority to offer alternative
accommodation, or at least to declare that they are in breach of their
duty so long as they fail to do so. While one must take into account the
practical realities of the situation in which authorities find themselves,
one cannot overlook the fact that Parliament has imposed on them clear
duties to the homeless, including those occupying unsuitable
accommodation. In some cases, the situation of a particular applicant in
her present accommodation may be so bad, or her occupation may have
continued for so long, that the court will conclude that enough is enough.
The accommodation issue
- Once it is decided that it would not be
reasonable for a particular woman in a refuge to continue to occupy her
place there indefinitely, it becomes unnecessary to decide whether the
refuge is “accommodation". Women will be homeless while they are in the
refuge and remain homeless when they leave. A woman who loses her place
there, even because of her own conduct, does not become homeless
intentionally, because it would not have been reasonable for her to
continue to occupy the refuge indefinitely. Nevertheless, we should do the
parties in the Manchester case the courtesy of saying a few words upon the
principal issue which they argued before us.
- Mr Jan Luba QC, for Ms Moran, argued with all
his usual persuasive force that Sidhu was rightly decided. A person
who has fled her proper “home” because of domestic violence cannot be
regarded as having “accommodation” just because she has a temporary roof
over her head. Some places simply cannot be regarded as “accommodation”
for this purpose at all. A night shelter where a person was given a bed if
one was available but turned out during the day is one example: see R v
Waveney District Council, Ex parte Bowers, The Times, 25 May
1982.
- Furthermore, there are other situations under
the Act in which a person may have a roof over his or her head - indeed a
roof which is described as “accommodation” for one purpose - but is still
regarded as without accommodation for the purpose of section 175(1). Thus
it is no longer suggested that a person who has been provided with interim
accommodation under section 188(1) is no longer “homeless” for the purpose
of section 175(1) for this would defeat the whole scheme of the Act: see
R (Alam) v London Borough of Tower Hamlets [2009] EWHC 44 (Admin)
and the decision of Her Honour Judge Angelica Mitchell in Khatun v
London Borough of Newham (2000) November Legal Action 22. It
would be anomalous if a woman who goes directly to a refuge is treated as
having accommodation, while a woman who goes to her local housing
authority and is given accommodation in the same refuge under section
188(1) is not. It would also be anomalous if the first woman is denied the
reasonable preference which, under section 167(2) of the 1996 Act, must be
given to a homeless person in the council’s allocation scheme, while the
second woman is not.
- Mr Clive Freedman QC, for Manchester, accepts
that a person provided with interim accommodation under section 188 is
still homeless within the meaning of section 175. However, he argues that
the word “accommodation” must refer to the same type of place in both
sections. So if a refuge is accommodation for the purpose of section 188
it must also be accommodation for the purpose of sections 175 and 191.
Sidhu was wrongly decided and cannot survive the decision in
Puhlhofer. In that case Lord Brightman said this, at p 517E to
G:
“What is properly to be regarded as accommodation is a
question of fact to be decided by the local authority. There are no rules.
Clearly some places in which a person might choose or be constrained to
live could not properly be regarded as accommodation at all; it would be a
misuse of language to describe Diogenes as having occupied accommodation
within the meaning of the Act. What the local authority have to consider .
. . is whether he has what can properly be described as accommodation
within the ordinary meaning of that word in the English language.”
Puhlhofer was cited by Lord Hoffmann (albeit in the
context of deciding a rather different question) in Awua, at 69H,
where he held that “accommodation” means “a place which can fairly be
described as
accommodation".
- We have heard some interesting debate upon
whether a prison cell, or a hospital ward, could amount to accommodation
under the Act: see Stewart v Lambeth London Borough Council [2002] EWCA Civ 753, [2002] HLR 40, R (B) v Southwark London Borough Council
[2003] EWHC 1678 (Admin), [2004] HLR 3. If the answer to the
Sidhu question can now generally be found in section 175(3), we
would be inclined to accept that its approach to the question of
“accommodation” cannot survive the decisions of this House in Puhlhofer
and Awua. It does not need to do so and the concerns so clearly
expressed by Hodgson J can be addressed in another way. But we would not
be inclined to enter into any further discussion of whether a prison cell
or a hospital bed amounts to “accommodation” within the meaning of the Act
until the need arises.
The Birmingham allocation policy
- We have heard very little argument on this
point. The Court of Appeal (paras 45 and 46) decided that the policy of
putting the “homeless at home” into band B was unlawful because there
should not have been such a category. Once it was decided that the family
was homeless, they should not have been left at home but put into
temporary accommodation and thus into band A for allocation purposes.
Collins J decided that the policy was unlawful because it was incapable of
complying with Part 7 of the Act for the homeless to whom the full section
193(2) duty was owed. Simply including them in the allocation policy was
not sufficient to discharge the duty under Part 7 (paras 26 and 27).
- Were it to be the case that Birmingham relied
upon their allocation policy to fulfil their obligations under section
193(2), and thus to leave homeless families in accommodation which they
cannot be expected to live in for another night or which is otherwise not
suitable for them for more than the short term, then we would agree that
it is unlawful for them to do so. They might remedy this indirectly by
revising their allocation policy or more directly by adopting a different
policy towards the discharge of their duty under section 193(2).
- As already explained, Part 6 and Part 7 of
the 1996 Act involve very different duties. One is to have a lawful
allocation policy and to operate it fairly. The other is to accommodate
homeless people. The fact that an authority may have performed their duty
under Part 6 does not mean that the duty under Part 7 is thereby satisfied
or vice versa. Indeed, many applicants under Part 6 may not be in a
position to invoke a Part 7 duty.
- If an applicant is in occupation of
accommodation which it would not be reasonable to expect her family to
occupy other than temporarily, the council could not say that it would
automatically satisfy the Part 7 duty to place the applicant even in band
A. In any case where the applicant could not be expected to spend another
night in her accommodation, the council would be obliged to provide her
with new accommodation forthwith. As already explained, that new
accommodation could be anything from very temporary to effectively
permanent. But in such a case, unless being placed in band A would
guarantee immediate new accommodation, it would not suffice to satisfy the
Part 7 duty. To that extent we agree with Collins J. On the other hand,
where the applicant could reasonably be expected to remain in her present
accommodation for a period, simply placing her in band A (or indeed in
band B) may well satisfy the Part 7 duty: whether it did so or not would
depend on whether it would result in her being offered suitable
accommodation before it ceased to be reasonable for her to continue in
occupation of her present accommodation for another night.
- The Court of Appeal’s view was that it was
unlawful for the council to give priority to those who had been placed in
temporary accommodation (who were in band A) over those who had been left
in their current accommodation, even though it was not accommodation which
it would be reasonable for them to occupy (who were in band B). In so far
as this view was based on the conclusion that the latter applicants could
not lawfully have been left in their current accommodation, we cannot
support it. However, the Court of Appeal’s view was also based on the fact
that the council’s Part 7 duty to both groups of applicant was identical,
and therefore it was unlawful to prioritise one group over the other. To
put the point another way, because applicants in both groups were in
accommodation which could only be regarded as temporary, and were
therefore entitled to “reasonable preference” for Part 6 purposes by
virtue of section 167(2), there was no proper basis for distinguishing
between them.
- In R (Ahmad) v London Borough of
Newham [2009] UKHL 14 (decided almost a year after the Court of Appeal
handed down judgment in the Birmingham cases), this House made it clear
that the courts should be very slow indeed to interfere with a local
housing authority’s allocation policy, unless it breached the requirements
of Part 6. Provided that “reasonable preference” is given to all those who
are homeless within the meaning of Part 7, there is no reason why an
authority should not decide to give some homeless groups priority over
others, as long as the decision is not irrational. The question, which is
very difficult to determine on the sparse information available, is
therefore whether it is irrational to accord priority to those placed in
new accommodation on a temporary basis over those who are left in their
current accommodation on a similarly temporary basis.
- The council’s explanation for this priority
is to “assert the premise on which the Allocation Policy is based [namely]
that those in greatest need are dealt with first". This bald statement is
not enough to justify the priority accorded to those in new temporary
accommodation over those left temporarily in their existing accommodation.
Both groups are in accommodation which is temporary. Indeed, at least on
the face of it, if anything, it would appear that the latter group would
have the more pressing claim. They are, ex hypothesi, in
accommodation which has been found to be such that it would not be
reasonable for them to continue in occupation. No such finding will
necessarily have been made as to the accommodation now occupied by the
former group. It may be that the council could have shown that, as a
matter of fact, applicants in the former group are normally in worse
accommodation than those in the latter group: if so, the priority would be
justifiable. It may be, for example, that when the council refer to
“temporary accommodation” they are referring to bed and breakfast hotels
or hostels. But no such evidence, not even an opinion to that effect, has
been put forward in the evidence. Accordingly, on this, relatively narrow
aspect, we would agree with the decision of the Court of Appeal.
Disposal
- My Lords, we would allow Birmingham’s
appeal, to the extent that it is lawful for them to decide that an
applicant is homeless because it is not reasonable for him to remain in
his present accommodation indefinitely but to leave him there for the
short term. We would not agree that it is lawful for them to leave such
families where they are until a house becomes available under the
council’s allocation scheme. The present accommodation may become
unsuitable long before then. We would make a declaration to that effect.
We would also uphold the Court of Appeal’s view that the allocation policy
distinction is unlawful if and to the extent that it gives preference to
people in one type of temporary accommodation which is no less
satisfactory than the accommodation in which homeless families are left
temporarily at home. As all these families have now been allocated
suitable accommodation, no other remedy is called for and we would not be
inclined to enter into debate about the criteria governing the grant of
mandatory injunctions in homelessness cases.
- We would also allow the appeal in the
Manchester case. Although there may be circumstances in which it is
reasonable to continue to occupy a place in a refuge indefinitely, there
is nothing to suggest that it was so in this case. As it all happened so
long ago, and the situation of Ms Moran and her family has changed so much
(and not for the better), the practical solution is simply to quash the
finding that she had become homeless from the refuge intentionally and
replace it with a finding that she had not. This will remove what has been
called the “mark of Cain". There may come a case in which we should
re-examine the circumstances in which a finding of intentional
homelessness ceases to colour all future decisions under the Act but there
is no need for us to do so now. The important principle established here
is that in most cases a woman who has left her home because of domestic
(or other) violence within it remains homeless even if she has found a
temporary haven in a women’s refuge.
- For those reasons, we would allow both of
these appeals. In the Ali case, we would declare that it is lawful
for the Council to decide that a family is homeless because it is not
reasonable for the family to remain in their present accommodation
indefinitely and to accommodate them there for as long as it is suitable
as short term accommodation; but that it is not lawful for them
automatically to leave such families where they are until a house becomes
available under the Council’s allocation scheme. In the Moran case
we would quash the finding that the appellant had become homeless from the
refuge intentionally and substitute a finding that she had not.
LORD NEUBERGER OF ABBOTSBURY
My Lords,
- I have had the opportunity of reading in
draft the opinion prepared by my noble and learned friend Baroness Hale of
Richmond. As she explains, I have had some input into that opinion, but it
is only right to record that her contribution was significantly greater
than mine. As she says, the opinion accurately represents my views, and
accordingly I too would allow these two appeals to the extent that she
indicates.
|
