(back to preceding text)

56.  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.

57.  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).

58.  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).

59.  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.

60.  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.

61.  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.

62.  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.

63.  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.

64.   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.

65.  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.

66.  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,

67.  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.