Griffiths v St Helens Council

Mr Jan Luba QC, for the appellant, and Mr Andrew Arden QC, for the respondent in this appeal, both agree that amendments to section 193 of the Housing Act 1996, made by the Homelessness Act 2002, are not happily drafted. They agree about much else that comprises introductory background to the issue in this appeal. I acknowledge and am grateful for their great experience in these matters.

Part VII of the 1996 Act is concerned with homelessness. Section 193 applies where a local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he or she became homeless intentionally. The statutory structure which brings together an applicant having these four attributes is in sections 183 to 192 of the Act. It is described in detail in the judgments in this court of Buxton and Chadwick LJJ in Crawley Borough Council v B (2000) 32 HLR 636, and in shorter form in the judgments of another constitution of this court in London Borough of Tower Hamlets v Deugi [2006] EWCA CIV 159, which is to be delivered at the same time as the judgment in this appeal. It is not necessary to repeat the detail. The accounts in Crawley referred to the structure of the 1996 Act as it was originally enacted.

By section 193(2), the local housing authority have a duty to secure that accommodation is available for occupation by a homeless applicant to whom section 193 applies, unless the authority refer the application to another local housing authority. The duty under section 193(2) is sometimes referred to as the “full duty”, although it is more properly referred to in Part VII as the “main housing duty”. There are other lesser duties where an applicant does not fulfil all the criteria in section 193(1).

Part VII of the 1996 Act was a progression from provisions in the Housing Act 1985. The duties then imposed on local authorities by the Housing (Homeless Persons) Act 1977 and Part III of the 1985 Act were summarised by Sir Thomas Bingham MR (as he then was) in R v Wandsworth London Borough Council ex parte Mansoor [1997] QB 953 at 961E to 963C. It had been thought that a local housing authority’s duty to an unintentionally homeless person in priority need under section 65(2) of the 1985 Act was to secure that permanent or secure accommodation became available for his occupation. But the House of Lords had held in R v Brent London Borough Council ex parte Awua [1996] 1 AC 55 that this was not so. Under the substituted section 69(1) of the 1985 Act, the accommodation had to be “suitable”, but this did not import any requirement of permanence – see Lord Hoffmann, with whom the other Law Lords agreed, at page 72B. Sir Thomas Bingham MR, in Mansoor, followed Awua in holding that the full duty might be discharged by securing the offer of an assured shorthold tenancy of suitable premises (page 923g).

Lord Hoffmann said in Awua, at page 72F, that, if a person who had been provided with accommodation in accordance with section 65(2) of the 1985 Act was once again made homeless or threatened with homelessness (for example, because the Council or other landlord had terminated his right of occupation), he might apply again, and the Council would be required once again to make enquiries under section 62(1).

Mr Luba and Mr Arden agree that Part VII of the 1996 Act is generally concerned with securing for those who are homeless speedy accommodation which may be temporary, and that the full duty owed under section 193(2) may be performed by securing suitable temporary accommodation. By contrast Part VI of the 1996 Act now makes provision for local housing authorities to allocate secure housing accommodation, sometimes after an introductory period – see sections 159ff.

Speaking broadly, there are three relevant possible sources of rented accommodation, in addition to hotels and bed and breakfast accommodation, whose suitability is now heavily circumscribed by the Homelessness (Suitability of Accommodation) (England) Order 2003 (SI 2003 No. 3326). There may be (1) accommodation owned by the local authority; (2) accommodation in the hands of registered social landlords; and (3) private rented accommodation. Many local authorities, including St Helens Council (“St Helens”), the respondent to this appeal, no longer own residential council accommodation – this the result of the policy of transferring council housing stock to registered social landlords. Local housing authorities have nomination rights to a proportion of accommodation in the hands of registered social landlords. These are more often taken for allocating permanent accommodation under Part VI of the 1996 Act.

Before the Housing Act 1988, a restrictive legislative regime had progressively discouraged private landlords from letting residential accommodation. To counter this and to regenerate a market for private letting of residential accommodation, the Housing Act 1988 introduced assured shorthold tenancies. Section 20 of the 1988 Act provided that an assured shorthold tenancy is an assured tenancy granted for a fixed term of not less than 6 months, where the landlord has no power to determine the tenancy at any time earlier than 6 months from the beginning of the tenancy. Section 21 provides that, once a fixed term assured shorthold tenancy of a dwelling house has come to an end, the landlord is entitled to recover possession of it on giving the tenant not less than 2 months’ notice. So a fixed term assured shorthold tenancy is effectively secure for not less than 6 months, but technically insecure thereafter. Section 96 of the Housing Act 1996 inserted a new section 19A into the 1988 Act. With effect from 28^th February 1997, all new assured lettings are, by default, to be assured shorthold tenancies, except to the extent provided for in a new schedule 2A. The three original preconditions for an assured shorthold tenancy were removed. As Mr Luba has written, the assured shorthold tenancy is now the default tenancy in private renting.

Assured shorthold tenancies are the form of tenancy preferred by the great majority of private landlords. Rents are not subject to fair rent regulation by the rent officer but are, in general, market rents agreed between the landlord and tenant. Without financial assistance, these rents may well be beyond the means of those who are homeless. Although they are technically insecure after the first six months, the market sees to it that many tenants live with reasonable security for a number of years under assured shorthold tenancies.

A report by the Office of the Deputy Prime Minister of June 2005, “Providing More Settled Homes”, states that:

“… many local authorities have used the private rented sector as a source of good quality, self contained temporary accommodation. As a result, over half of all temporary accommodation used currently is in the private rented sector.

The private rented sector can also provide a source of settled accommodation, where qualifying offers of ASTs are accepted by households who are owed the main homelessness duty.”

By section 182 of the 1996 Act, the local housing authority is obliged to have regard to such guidance as may from time to time be given by the Secretary of State. In July 2002, to coincide with the inception of the Homelessness Act 2002, the Office of the Deputy Prime Minister issued a Homelessness Code of Guidance for Local Authorities. Paragraphs 11.27 and 11.28 of this Code are under a heading “Tenancies granted by private landlords and RSLs to assist with interim duties”. Interim duties are those whose discharge is provided for in section 209 of the 1996 Act. These do not include the full duty under section 193(2). Paragraph 11.27 of the Code however states:

“Tenancies granted to homeless applicants by a private landlord or RSL to assist a housing authority discharge a duty under Part 7 would normally be an assured shorthold tenancy. However s.209 provides …”

Paragraph 11.28 states:

“Where a private landlord or RSL provides accommodation to assist a housing authority discharge any other homelessness duty, the tenancy granted will be an assured shorthold tenancy unless the tenant is notified that it is to be regarded as an assured tenancy.”

The Code would not of course override the true construction of the statute, if they were different. But this and other matters to which I have referred show, as is agreed, that, at the time when the 1996 Act was amended by the 2002 Act, the most likely kind of privately rented accommodation was an assured shorthold tenancy.

It is now necessary to reproduce in full section 193 of the 1996 Act as amended by the 2002 Act. Square brackets indicate those parts of the section which were added by amendment.

“Duty to persons with priority need who are not homeless intentionally

193.-(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. […]

(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

[(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.]

[(3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167(1A) (policy on offering choice to people allocated housing accommodation under Part 6).]

(4)

[…]

(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal [and of his right to request a review of the suitability of the accommodation], refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

(6)

The local housing authority shall cease to be subject to the duty under this section if the applicant-

(a)

ceases to be eligible for assistance,

(b)

becomes homeless intentionally from the accommodation made available for his occupation

(c)

accepts an offer of accommodation under Part VI (allocation of housing), or

[(cc accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord, or]

(d)

otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.

[(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.]

[7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).]

[(7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer of an assured shorthold tenancy which is made by a private landlord in relation to any accommodation which is, or may become, available for the applicant’s occupation.]

[(7C) The applicant is free to reject a qualifying offer without affecting the duty owed to him under this section by the authority.]

[(7D) For the purposes of subsection (7B) an offer of an assured shorthold tenancy is a qualifying offer if-

(a)

it is made, with the approval of the authority, in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority’s duty under this section to an end;

(b)

the tenancy being offered is a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988 (c.50)); and

(c)

it is accompanied by a statement in writing which states the term of the tenancy being offered and explains in ordinary language that-

( i) there is no obligation to accept the offer, but

(ii)

if the offer is accepted the local housing authority will cease to be subject to the duty under this section in relation to the applicant.]

[(7E) An acceptance of a qualifying offer is only effective for the purposes of subsection (7B) if the applicant signs a statement acknowledging that he has understood the statement mentioned in subsection (7D).]

[(7F) The local housing authority shall not-

(a)

make a final offer of accommodation under Part 6 for the purposes of subsection (7); or

(b)

approve an offer of an assured shorthold tenancy for the purposes of subsection (7B),

unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer.]

(8)

For the purposes of [subsection (7F)] an applicant may reasonably be expected to accept an offer […] even though he is under contractual or other obligations in respect of his existing accommodation, provided he is able to bring those obligations to an end before he is required to take up the offer.

(9)

A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.”

Section 206(1) of the 1996 Act provides:

“A local housing authority may discharge their housing functions under this Part only in the following ways –

(a)

by securing that suitable accommodation provided by them is available,

(b)

by securing that he [sc the applicant] obtains suitable accommodation from some other person, or

(c)

by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”

Sharon Griffiths, the appellant, was a secure tenant of the respondent at an address in St Helens where she lived with her five children. In 2002, the property was among those transferred to Helena Housing Association, of whom she became an assured tenant.

On 28^th January 2004, the housing association obtained an order for possession of her home because of anti-social behaviour by two of her sons which she had not succeeded in preventing. She applied to St Helens Metropolitan Borough Council for assistance as a homeless person under Part VII of the 1996 Act. On 28^th July 2004, HH Judge Mackay allowed her appeal under section 204 of the 1996 Act, reversing a decision of St Helens that she was intentionally homeless. St Helens then accepted that they were under a duty under section 193(2) to secure that suitable accommodation became available for her and her family.

The appellant and her family were first accommodated in two hotel rooms. As I have said, the Housing Association and private landlords were not initially prepared to provide accommodation because of the anti-social behaviour of the appellant’s sons. Eventually, however, St Helens managed to secure an offer of accommodation from a private landlord. The offer was of an assured shorthold tenancy with an initial fixed term of 6 months. The property was a 3 bed-roomed semi-detached house with a kitchen, living room, and front and rear garden. The rent was £450 per month, for which housing benefit would cover £280. St Helens agreed to pay the difference for the initial 6 months and, if necessary, thereafter. The landlord had indicated that he might continue the letting after the initial 6 months, if there were no problems meanwhile.

St Helens understood that, if the landlord refused to continue the letting, they would remain under a duty to secure that suitable accommodation was available for occupation by the appellant and her family, or that that duty would be resurrected. Leaving aside any technical point arising from the wording of the statute, they regarded themselves as securing for the appellant what might be temporary accommodation, which nevertheless performed or discharged for the moment their duty. St Helens did not, I think, make this entirely clear in their offer letter of 11^th October 2004. But the letter did say that St Helens were satisfied that the accommodation was suitable for the appellant and that, if she refused the offer, they would regard their duty as being discharged in accordance with section 193(5). They further stated that the appellant had a right of review of the suitability of the accommodation.

Mr Luba accepts that, subject to the single point of law which is the subject of this appeal, the offer of accommodation was within section 193(5) of the 1996 Act. He does not take any point that, if this court is against the appellant on the point of law, the letter of 11^th October 2004 inadequately explained that the offer was of what might be temporary accommodation; and that, if the private landlord brought the assured shorthold tenancy to an end after 6 months, St Helens accepted that their full homelessness housing duty would remain or be revived. But Mr Luba and Mr Arden both encourage the court to give some indicative guidance for that eventuality. The important point for present purposes is that St Helens did clearly inform the appellant that, if she refused the offer, they would regard their duty as discharged.

The appellant visited the house, and, on 20^th October 2004, initially accepted the offer, subject to requesting a review under section 202 of the suitability of the accommodation. Suitability was an issue before the judge – he decided that the accommodation was suitable – but not on this appeal. In early November 2004, the appellant was about to move into the property, but then refused to do so because she feared for her family’s safety because of publicity which her case had received. The owner of the property withdrew the offer. In a review decision of 15^th December 2004, St Helens maintained that they no longer had a duty to the appellant under section 193 of the 1996 Act.

The appellant appealed to the county court under section 204 of the 1996 Act. HH Judge Mackay, sitting in the St Helens’ County Court, decided on 7^th April 2005 that the offered accommodation was suitable; and that St Helens’ duty to the appellant under section 193(2) had ceased under section 193(5), because she had refused the offer of an assured shorthold tenancy of suitable accommodation from a private landlord which St Helens had secured for her. She appeals against the second only of these decisions. It is technically a second appeal, for which Neuberger LJ gave permission.

The appeal turns on the construction and effect of infelicitous amendments to section 193 of the 1996 Act made by the 2002 Act.

Section 193(5) was not amended, other than by adding a right to request a suitability review, which is immaterial for present purposes. Mr Luba accepts that, before the 2002 amendments were made, the refusal of an offer of an assured shorthold tenancy of suitable accommodation, where the authority notified the homeless applicant that they regarded themselves as having discharged their duty under the section, could come within section 193(5). As I have said, Mr Luba accepts that a local housing authority can perform their section 193(2) duty by offering suitable temporary accommodation. He accepts, I think, that if the temporary accommodation subsequently ceases to be available, and if other relevant facts have not changed, the section 193(2) duty revives. He is understandably coy about whether the duty was meanwhile performed, or ceased, or was discharged while the suitable temporary accommodation was available, or whether it was perhaps dormant. Such questions ought to be reserved for angels dancing on pinpoints.

The appellant’s case is, however, that the 2002 amendments effected a radical change for assured shorthold tenancies. The effect of the change is, submits Mr Luba, to remove assured shorthold tenancies entirely from the possible ambit of section 193(5). Now, the refusal by a homeless person of an offer, made by a private landlord, of an assured shorthold tenancy can never be sufficient to bring to an end the duty owed by a local housing authority to that homeless person under section 193(2).

Mr Luba acknowledges that the words of section 193(5), taken alone, would include the refusal of an offer of suitable accommodation by a private landlord under an assured shorthold tenancy, as essentially the same words did before the 2002 amendments. But he says that the words now have to be read in a different context and in the light of the amendments.

Mr Luba points first to the added section 193(6)(cc). This provides, as one of the circumstances in which the local housing authority “shall cease to be subject to the duty under this section”, if the applicant:

“accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord.”

So, under this sub-section, accepting an offer of an assured shorthold tenancy from a private landlord does not mean that the local housing authority ceases to be subject to the duty.

Mr Luba then points to the added sub-sections (7B) to (7F). The authority also ceases to be subject to the section 193(2) duty, if the applicant accepts a qualifying offer of an assured shorthold tenancy made by a private landlord.

An offer of an assured shorthold tenancy is a qualifying offer, if the conditions of sub-section (7D) are fulfilled. The offer has to be made with the approval of the authority in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority’s duty under the section to an end. The offered tenancy has to be a fixed term tenancy. It has to be accompanied by a written statement which states the offered terms of the tenancy, and explains in ordinary language that there is no obligation to accept the offer; but that, if the applicant does accept the offer, the local housing authority will cease to be under the section 193(2) duty to the applicant. An acceptance of a qualifying offer is only effective for the purpose of sub-section (7B), if the applicant signs a statement acknowledging that he has understood the section (7D) written statement. The local housing authority may not approve an offer of an assured shorthold tenancy for the purposes of sub-section (7B), unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer.

So that is a qualifying offer of an assured shorthold tenancy by a private landlord. By sub-section (7C), the applicant is free to reject it without affecting the duty owed to him by the local housing authority under section 193(2). So, submits Mr Luba, since an applicant is thus free to reject a qualifying offer of an assured shorthold tenancy by a private landlord, the refusal of an offer of an assured shorthold tenancy of suitable accommodation by a private landlord can no longer be within section 193(5).

Mr Arden acknowledges that some element of creative construction or implication is necessary to make the amended section as a whole clear. Mr Luba’s construction needs to read words such as “other than an offer of an assured shorthold tenancy by a private landlord” into section 193(5). That, in the context of the acknowledged background, would have so radical effect on the ability of local housing authorities in modern conditions to perform their duties to the homeless that it should be rejected in favour of a much less violent alternative. Mr Luba’s submission would be tantamount to saying that accommodation for the homeless, whether temporary or permanent, can scarcely ever be provided by a private letting.

Mr Arden submits that the alternative is to read section 193(5) as capable of embracing the refusal of an offer of any accommodation which is suitable, which may nevertheless be a temporary or staged solution to the applicant’s homelessness. This would include an offer of what may become temporary accommodation under an assured shorthold tenancy from a private landlord. Sub-sections (7B) to (7F), by contrast, do not contemplate the acceptance of an offer of an assured shorthold tenancy from a private landlord which is regarded as temporary. Thus in short, an applicant is free to refuse an assured shorthold tenancy from a private landlord offered as a permanent solution to their homelessness, but not an offer of an assured shorthold tenancy from a private landlord which is not put forward as a permanent solution.

In my judgment, Mr Arden’s solution is correct and Mr Luba’s incorrect. The judge, in my view, reached the correct conclusion. I give more extended reasons for this in my own words.

It is acknowledged that the duty of a local housing authority under section 193(2) does not require them to secure that permanent accommodation is available for an applicant. They must discharge their housing functions under Part VII by securing that the applicant obtains suitable accommodation (section 206), and this may be temporary accommodation. Section 193(5) is capable of embracing an offer of temporary accommodation. It follows that, to discharge their functions, the local housing authority may have to secure a series of temporary accommodation for an applicant.

It is acknowledged that, before the 2002 amendments, section 193(5) was capable of embracing an offer of suitable accommodation to be let on an assured shorthold tenancy from a private landlord. Since the great majority of private lettings of residential property are on assured shorthold tenancies, it would be singularly inept drafting not to omit them expressly from section 193(5), if that had been the intention in 2002.

There are now eight circumstances in which section 193 provides that the local housing authority “shall cease” to be subject to the duty under the section. They fall roughly into three groups. The first group – sub-sections (6)(a) and (b) – comprise circumstances in which one of the criteria in section 193(1) ceases to apply. This group may be left to one side. The second group – sub-sections (5), (6)(d) and (7) – comprise circumstances in which the applicant has acted to frustrate the efforts of the local housing authority to overcome their homelessness. The applicant “refuses” or “voluntarily ceases to occupy” suitable temporary or permanent accommodation secured for him. The third group – sub-sections (6)(c) and (cc) and (7B) – comprise circumstances in which the applicant “accepts” an offer of accommodation. The first two of these are offers of secure or permanent accommodation. For reasons which I shall shortly explain, I think that sub-section (7B) is also concerned with what is to be regarded as permanent accommodation. Applicants within the third group, therefore, are no longer to be regarded as homeless.

There is a clear contrast between the second group, where the duty ceases because the applicant “refuses” an offer; and the third group where the duty ceases because the applicant “accepts” an offer. Those who refuse suitable accommodation are acting unreasonably; those who accept are no longer homeless. For this reason, I consider that Mr Luba’s submission relating to sub-section (6)(cc) has no force. An assured shorthold tenancy is omitted from sub-section (6)(cc), not so that it has ceased also to be within sub-section (5), but because it is held back for special treatment in sub-section (7B).

The elaborate provisions for a qualifying offer of an assured shorthold tenancy from a private landlord in sub-section (7B) are there to recognise that, on the one hand, assured shorthold tenancies from private landlords have their disadvantages – the rent is not controlled and the tenure is technically insecure – but that, on the other hand, some homeless applicants may reasonably prefer to accept the offer of such a tenancy, rather than remain in temporary accommodation for a long time until they may be offered secure accommodation under Part VI. Some homeless applicants may therefore be prepared to accept an offer of an assured shorthold tenancy from a private landlord as the permanent accommodation which in practice it is often capable of being. But they must only do so with their eyes fully open, and the local housing authority must be satisfied that it is reasonable for the applicant to accept the offer. Applicants are entitled to reject the offer. But if they do accept it, the local housing authority’s duty ceases. That makes sense, I think, even if, as Mr Luba suggests, few applicants will in practice agree to go down this road.

The rejection of a qualifying offer of an assured shorthold tenancy from a private landlord could never come within section 193(5) because, quite apart from the terms of sub-section (7C), the terms of the statement required under sub-section (7D)(c) would be incompatible with the information by the authority of the possible consequences of refusal, which is a prerequisite of the operation of section 193(5). The corollary of this is that the introduction of sub-sections (7B) to (7F) does not implicitly remove the refusal of an offer of an assured shorthold tenancy from a private landlord from the possible ambit of section 193(5).

Returning to section 193(5), in my judgment, the subsection is capable of applying to any offer of suitable accommodation, including an offer of an assured shorthold tenancy from a private landlord, apart from a qualifying offer under sub-section (7B). The sub-section is neutral as to whether an offer to which it applies is of temporary or permanent accommodation; but it is much more likely in practice to apply to an offer of accommodation which is or may become temporary. As I have said, an assured shorthold tenancy from a private landlord may be technically insecure, but may in practice extend for a number of years. If the applicant accepts the offer and the accommodation subsequently ceases to be available, the authority’s duty will have to be performed again, assuming that the applicant’s circumstances have not otherwise relevantly changed.

Thus, Mr Arden’s solution requires, I think, a degree of construction, in the sense of teasing out the structure and import of the amended section 193 as a whole, but requires no implication or distortion of the actual words in the statute.

Mr Luba submits, as a coda to his main submission, that no local housing authority properly directing itself as to the statutory scheme as a whole could be satisfied that the offer by a private landlord of a non-“qualifying” assured shorthold tenancy was the offer of “suitable” accommodation for the purposes of section 193(5). I reject this submission, which implicitly mischaracterises a qualifying offer. As was explained in Awua and Mansoor, permanence is not a necessary attribute of suitability. The fact that an applicant is free to reject a qualifying offer does not affect the suitability of accommodation offered for different purposes.

For these reasons I would dismiss this appeal.

The construction of section 193, which I have explained, does not leap off the page. In my view, misunderstanding by homeless applicants, and those helping them, should be reduced for the future, if local housing authorities, who seek to discharge their duty under section 193(2) by securing the offer of an assured shorthold tenancy from a private landlord to which, if the offer is refused, section 193(5) may apply, explain in the offer letter what they are doing. The explanation should include statements to the effect (a) that the authority acknowledges that the accommodation would be temporary if the private landlord lawfully exercises his right to recover possession after the end of the fixed term; and (b) that, if that happens and assuming that the applicant’s circumstances have not materially changed, the authority accepts that it would again become obliged to perform its duty under the section to secure that accommodation is available for occupation by the applicant.