Judgments - Birmingham City Council (Appellants) v Ali (FC) and others (FC) (Respondents) Moran (FC) (Appellant)

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24.  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.

25.  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.

26.  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.

27.  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

28.  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.

29.   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.

30.  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.

31.  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.

32.  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.

33.   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”

34.  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?

35.  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.

36.  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.

37.  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.

38.  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.

39.  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?

40.  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.

41.  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.

42.  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.

43.  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?

44.  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).

45.  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.

46.  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.

47.  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.

48.  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).

49.  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.

50.  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.

51.  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

52.  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.

53.  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.

54.  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.

55.  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".

 
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