House of Lords
|Session 2008 - 09|
Publications on the Internet
PDF Print Version
|Judgments - Birmingham City Council (Appellants) v Ali (FC) and others (FC) (Respondents)
Moran (FC) (Appellant)
HOUSE OF LORDS
 UKHL 36
on appeal from: EWCA Civ 1228 EWCA Civ 378
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)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Appellant (Birmingham City Council):
Ashley Underwood QC
(Instructed by Birmingham City Council)
Jan Luba QC
(Instructed by Shelter Greater Manchester Housing Centre )
Interveners: Womens Aid Federation:
(Instructed by Sternberg Reed )
Jan Luba QC
(Instructed by Community Law Partnership)
Respondent (Manchester City Council):
Clive Freedman QC
(Instructed by Manchester City Council)
Interveners: Secretary of State for Communities and Local Government:
(Instructed by Treasury Solicitors)
26 JANUARY, 28 and 29 APRIL 2009
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)
 UKHL 36
LORD HOPE OF CRAIGHEAD
1. 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.
2. 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 authoritys 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 womens 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.
3. I wish also to associate myself particularly with Baroness Hales 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  EWCA Civ 925,  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  EWHC 52 (Admin). He said that it was a breach of the authoritys 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 Collins J recommended discussion leading to agreement, not compulsion.
4. In the Court of Appeal Arden LJ disagreed with the way the duty was expressed in Codona: R (Aweys) v Birmingham City Council  EWCA Civ 48,  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
5. 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
6. 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
7. 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.
8. 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 partners violence and went to a womens 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.
9. 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.
10. 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  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.
11. 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.
12. 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.
13. 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
14. 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  AC 55, 71G-72B, it is important when considering an authoritys duty under Part 7 not to confuse it with their duty under Part 6.
15. 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 authoritys policy in allocating housing, whereas Part 7 is concerned with their duties towards individual people who face the immediate problem of homelessness.
16. 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 persons 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 persons 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).
17. 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).
18. 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 councils 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).
19. 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.
20. 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.
21. 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
22. 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.
23. 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.