Conville v London Borough of Richmond-Upon-Thames

This an appeal against a judgment of Goldring J dated 5 July 2005. Ms Therese Conville, the appellant, challenges the judge’s construction of Section 190(2)(a) of the Housing Act 1996 (as amended by the Homelessness Act 2002) (“the 1996 Act”). In her claim form, the appellant sought mandatory relief against the London Borough of Richmond-upon-Thames (“the council”), including an order requiring the council to provide accommodation for her.

On the day before judgment was delivered, the appellant found her own accommodation and mandatory relief was no longer sought. Permission to appeal to this court was given by Waller LJ, on the basis that the judge’s construction of the statute, which might otherwise be relied on in other cases, should be considered by the Court of Appeal.

In those circumstances, the facts can be stated briefly. The appellant is a single mother of one son, aged 13 years. Having lost her accommodation in November 2004, the appellant applied to the council on 22 November 2004 for assistance with housing. She and her son were provided with temporary bed and breakfast accommodation pending an assessment.

By letter of 22 February 2005, the council wrote to the appellant informing her of their decision that, in the terms of the 1996 Act, they were satisfied that the appellant was homeless, had a priority need (as she had a dependent child) but also that she had become homeless intentionally. She was given 28 days notice to leave the temporary accommodation. An extension was granted but the appellant was told by letter received on 11 or 12 May that the provision of temporary accommodation would end on 3 June 2005, that is about three weeks from the receipt of the letter.

It was accepted that the appellant had made genuine attempts to find accommodation. Her problem was that she was unable to finance the deposit of one month’s rent and the further month’s rent in advance required by the landlords she approached. The possibility of her borrowing money from a friend or relative had been raised by the council, as had the possibility of financial assistance from the council. The council operated a rent deposit scheme under which the homeless could be assisted with deposits and advances of rent but the appellant was told she was not eligible.

A further short extension was granted and, before it expired, the proceedings were issued. The appellant obtained an interim injunction requiring the council to provide accommodation until further order.

Section 190 of the 1996 Act provides:

“(1)

This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

(2)

If the authority are satisfied that the applicant has a priority need, they shall –

(a)

secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

(b)

provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

(3)

If they are not satisfied that he has a priority need, they shall provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

(4)

The applicant’s housing needs shall be assessed before advice and assistance is provided under the subsection (2)(b) or (3).

(5)

The advice and assistance provided under subsection (2)(b) or (3) must include information about the likely availability in the authority’s district of types of accommodation appropriate to the applicant’s housing needs (including, in particular, the location and sources of such types of accommodation).”

By virtue of Section 182(1) of the 1996 Act, the council are required to have regard, in the exercise of their functions relating to homelessness and the prevention of homelessness, to the Homeless Code of Guidance for Local Authorities. Paragraph 9.30 of the current Code provides:

“[H]ousing authorities will need to consider each case on its merits. In particular, housing authorities will need to take account of the housing circumstances in the local area, including how readily other accommodation is available in the district, and have regard to the particular circumstances of the applicant, including the resources available to him or her to provide rent in advance or a rent deposit where this may be required by private landlords”.

The appeal turns on the construction of Section 190(2)(a). The judge found:

“62. In my view, words "reasonable opportunity of securing accommodation" involve consideration by the local authority both of the applicant's individual situation and that of the authority itself. In this case, that would involve consideration of the claimant's financial difficulties, but not to the exclusion of all else. It seems to me quite plain that Parliament intended that the local authority should exercise its judgment having regard to those factors it reasonably considered relevant. Those must include such things as the resources available to the authority, the demand for housing in the area, the demand from those who are not intentionally homeless and so on. If Miss Davies [counsel for the appellant] is right, on facts such as the present, such would be the obligation on the local authority that any distinction between the intentionally and unintentionally homeless person would to all intents and purposes disappear. For the practical effect of her submissions would be a virtually open ended obligation upon the authority to provide accommodation until such time as the claimant has obtained sufficient funding to rent property. That does not seem to me to have been Parliament's intention.”

The parties are at odds as to whether the appellant’s case was put as the judge understood it to have been put but the appeal will not turn on that issue. The judge found that the council had adequately discharged their duty under the section and had sufficiently expressed their reasons.

The judge also found that the council were entitled not to provide financial assistance to the claimant under Section 190(2)(b). The judge stated:

“87.

While in its earlier approach there was an over emphasis by the defendant upon eligibility under its scheme, it seems to me that by 9 June 2005 it was approaching the question of financial assistance in a way it was entitled to. It had regard to all the material aspects of the claimant's position. It was aware of its power to give financial assistance in terms of its obligations under section 190(2)(b). It placed such reliance on the terms of its scheme as it was entitled to. It was entitled to approach the claimant's application in the way it did. It was entitled to reject it. As to the reasons provided, they seem to be adequate. No doubt they could be expressed at greater length and in more detail. However, it is not appropriate in my view to subject the reasons expressed for a decision lawfully reached to over legalistic, textual analysis. As in all such situations the practical realities need always to be born in mind. No doubt those with responsibility for homelessness in an authority such as the defendant have difficult decisions to take and explain, often under considerable pressure.”

The decision not to provide financial assistance is not now challenged.

On behalf of the appellant, it is submitted that the language of Section 190(2)(a) imposes a duty to secure accommodation for such period as the council consider will give the particular homeless applicant a reasonable opportunity of securing accommodation for his particular household. It does not refer to the average or to the reasonable applicant and makes no reference to the resources of the council. Read with other statutory provisions, the paragraph requires the council to give assistance based on the individual needs, abilities and other relevant characteristics of each applicant. He must be given a reasonable opportunity to meet his particular needs. What is a “reasonable opportunity” is a simple factual question involving a matrix of facts including the applicant’s financial and other resources and the availability of accommodation in the district and elsewhere. The opportunity must be an effective one.

Since the council were not prepared to provide financial assistance for the appellant, it was necessary, in assessing what time was required to give the appellant a reasonable opportunity, to consider the prospects of her obtaining financial assistance from elsewhere and the prospect of finding a landlord who would accept her as a tenant without requiring a deposit and a month’s rent in advance.

The council were not entitled to take into account the extent of their own financial resources, it is submitted. The wording of the paragraph does not permit that interpretation. Had Parliament intended to permit consideration of the council’s resources, it would have done so expressly, as it has in other parts of the statute.

For the appellant, Mr Luba QC describes Part 7 of the 1996 Act, headed “Homelessness”, as providing a safety net for the homeless, as distinct from Part 6 which is concerned with the allocation of social housing. Because the whole of Part 7 of the 1996 Act constitutes a safety net, the provision of housing always being temporary and a route to long-term provision under Part 6, resources should not be an issue.

The highest duty in Part 7, under Section 193, is to persons with priority need who are not homeless intentionally. Subject to the exit routes provided in the section itself, the local housing authority (“the authority”) are under a duty to “secure that accommodation is available for occupation by the applicant”. Because the appellant was found to have become homeless intentionally, that duty did not arise in her case.

The lowest duty, under Section 192, is to persons not in priority need who are not homeless intentionally. Though there is a power to secure that accommodation is available for occupation by the applicant (sub-section 3), the duty is confined to providing the applicant with advice and assistance.

The duty under Section 190 was owed to the appellant as a homeless person with a priority need. Section 190 is drafted so as to adopt, subject to the temporal limitation, the duty to secure that accommodation is available from the wording of Section 193 (Section 190(2)(a)) and the duty to provide advice and assistance from Section 192 (Section 190(2)(b)).

In his analysis of Section 190, Mr Luba submits that what clearly emerges from the wording of Section 190(2)(a) is, first, that the decision is in the hands of the authority, secondly, that giving the person a reasonable opportunity is not the same as enabling that person to secure accommodation, thirdly, that the expression “give him” makes the opportunity “person centred” and, fourthly, that there is no express reference in the paragraph to the resources of the authority.

The duty of enquiry into cases of homelessness or threatened homelessness arises by virtue of Section 184(1). The authority are required to satisfy themselves whether a person is eligible for assistance and, if so, whether any duty, and if so what duty, is owed to him under Part 7. It is common ground that the duty in Section 190(2)(a) arises when, and only when, the decisions required by Section 190(1), following those enquiries, have been made by the authority.

Mr Luba refers to the requirement under Section 182, already cited, for the authority to have regard to such guidance as may from time to time be given by the Secretary of State. The relevant guidance makes no reference to the resources of the authority. It is also submitted that Section 190(2)(a) imposes a continuing and not a once and for all duty. The assessment of what is reasonable must have regard to any change of circumstances during the relevant period.

In submitting that Section 190(2)(a) is “resource free”, Mr Luba relies not only on the absence of any reference to the resources of the authority, or to other authority-sensitive criteria in the paragraph, but to the fact that the context requires that there has been a prior assessment of the housing needs of the particular person which, by virtue of Section 176, includes his household, a word used as shorthand for the categories defined in the section. Part 7 of the 1996 Act provides a safety net of last resort, subject to the duty to children under the Children Act 1989. If the resources of the authority are taken into account, any scheme is likely to be inconsistent as between applicants, the manner of discharge of the duty depending on the authority involved and the stage of the financial year, it is submitted. It is the hard-pressed authorities, where homelessness is likely to be a greater problem, where a lesser opportunity is likely to be given.

Mr Luba submits that where, in Part 7, wider considerations are intended to be taken into account, specific provision is made. For example, when deciding whether it is reasonable for a person to continue to occupy accommodation, under Section 177(2), regard may be had to the general circumstances prevailing in relation to housing in the relevant district. That is a concept which permits having regard to the resources of the authority. In considering out-of-area placements, under Section 208, the authority’s duty to secure that accommodation is available in its district applies “so far as reasonably practicable”.

For the council, Mr Hutchings accepts that a period of time provided must be favourable to an applicant to a reasonable extent and that what is a reasonable opportunity is not to be judged solely by objective criteria but must have regard to circumstances of the applicant. The particular circumstances of the particular applicant are relevant. It does not follow, he submits, that the resources of the authority are not a relevant factor. The authority may take into account the resources available to them for social housing and it is for the authority to evaluate the importance of cost as a factor.

By way of background, Mr Hutchings submits that Part 7 is not a final safety net because there are remaining duties to children under the Children Act 1989 (“the 1989 Act”) and to adults under Section 21 of the National Assistance Act 1948. He submits, and this is not in issue, that the period need not be long enough for the person actually to obtain accommodation and that “reasonable” opportunity does not necessarily mean an opportunity which leads to success. He submits that an opportunity may be reasonable within the meaning of the paragraph, even if one during which the applicant probably will not achieve success. A wide discretion is conferred on the authority.

Counsel’s central submission is that cost is inevitably a factor because the authority are meeting the cost of the temporary accommodation provided during the period of the reasonable opportunity. The cost factor is inescapably present and it follows that the resources of the authority are relevant to their decision.

“G” and further submissions

Mr Hutchings relies on the decision in and the statement of general principle by Lord Nicholls of Birkenhead in R (G) v Barnet LBC [2004] 2 AC 208. The issue was as to the nature and extent of the duty imposed on local authorities by Section 17(1) of the 1989 Act which imposes a “general duty” on local authorities with respect to children in need. The duty includes “a duty to promote the upbringing of such children by their families, by providing a range and level of services appropriate to these children’s needs”.

Lord Nicholls stated:

“13.

The extent to which a duty precludes a local authority from ordering its expenditure priorities for itself varies from one duty to another. The governing consideration is the proper interpretation of the statute in question. But identifying the precise content of a statutory duty in this respect is not always easy. This is perhaps especially so in the field of social welfare, where local authorities are required to provide services for those who need them. As a general proposition, the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area. In such cases the local authority may have a wide measure of freedom over what steps to take in pursuance of its duty.

14.

Towards one edge of this spectrum are instances such as section 23(1) of the Children Act 1989. Under this subsection it is the duty of a local authority looking after a child to provide accommodation for him while he is in the authority's care. This is a duty of an absolute character. An example of the opposite edge of the spectrum, taken from the field of education, is the broad duty imposed on a local education authority by section 8 of the Education Act 1944, now section 14 of the Education Act 1996, "to secure that there shall be available for their area sufficient schools ... for providing primary education". In R v Inner London Education Authority, Ex p Ali [1990] 2 Admin LR 822, 828, Woolf LJ described this as a "target duty".”

Having considered the submissions of the parties and the provisions in the 1989 Act, Lord Nicholls concluded:

“30.

Thus far I am broadly in agreement with the interpretation urged by the claimants. But I stop short of the conclusion submitted by them. In my view section 17(1) does not impose an absolute, or near absolute, duty on local authorities to meet the specific needs of every child who is in need, whatever those needs may be. There is no place for absolutes in such a wide-ranging duty regarding the welfare of children. Nor would that be consistent with the qualified nature of some of the specific duties imposed in Part I of Schedule 2. The "needs" of a child for services is itself an inherently imprecise concept. "Needs" are open-ended. Some limit can be placed on what are to be regarded as the needs of a child for the purposes of this legislation if the legislation is read, as it should be, as a reference to reasonable needs. Even so, this leaves much scope for differing views. Questions of degree will often arise. Likewise, the statutory obligation to provide a range and level of services "appropriate" to the needs of children in need gives a local authority considerable latitude in determining what is "appropriate" in an individual case in all the circumstances. In some cases the type and level of service provided may properly fall short of meeting all the child's needs as assessed. The extent of the latitude in each case depends upon the circumstances, prominent among which are the nature of the service in question and the nature and extent of the needs of the child. Cost is also an element which may properly be taken into account in deciding what is "appropriate" in a particular case. The extent to which cost, and hence the resources of a local authority, may be taken into account depends upon all the circumstances including how basic is the assessed need, the ease or difficulty with which it may be met, and the consequences of not meeting it. In a word, despite this latitude the council must act reasonably.”

Lord Hope of Craighead, at paragraph 92, stated that Section 17(1) was “broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services”. Lord Scott of Foscote, at paragraph 119, stated: “[I]t would be odd to find that the Section 17(1) general duty had imposed on a local authority a mandatory obligation to take some specific step in relation to the child irrespective of the local authority’s financial resources and of the cost of the step in question”.

Mr Hutchings submits that, as with Section 17(1) of the 1989 Act, Section 190(2)(a) of the 1996 Act is not drafted in a form which makes costs and resources obviously immaterial. Given a wide discretion, the extent of the duty must be considered proportionately and that involves taking the authority’s resources into account.

In response to the submission that some people to whom the Section 190 duty is owed, for example disabled people, will have extreme difficulty in finding accommodation so that, if the appellant’s construction of reasonable opportunity is correct, a duty clearly intended to be temporary duty is converted into a permanent duty, Mr Luba submits that in practice this is unlikely to occur in any event because such people will be propelled to the top of the housing allocation list for Part 6 purposes. Mr Hutchings submits that this is not an answer; the appellant’s case converts a Part 7 duty into a Part 6 duty. To prevent that, it is necessary to have regard, under Section 190, to the authority’s resources.

That is the issue on which the case has been permitted to come to this court. The second ground of appeal is that the council did not in any event ask itself the correct question or consider sufficiently the issues raised by the appellant as to what period would give a reasonable opportunity. In the absence of actual facts upon which a decision is required, it would not be helpful in this appeal to state what, in a particular case, would amount to a reasonable opportunity. The judge, having found for the council on the first issue, stated:

“64.

It seems to me that reflects a sufficient consideration of the issues raised in this case by section 190(2)(a). It seems to me the defendant was entitled to come to the decision expressed in that letter whether the starting date was 22 February or 11 May.

65.

It is not necessary to analyse the earlier decision letters or make any findings regarding them. By 8 June 2005 the defendant had adequately discharged its duty under section 190(2)(a) for reasons sufficiently expressed.”

The judge referred to the council’s letter of 8 June 2005, in which a further night of accommodation was refused:

“Having taken into account the scarcity of housing in the locality for people who are on benefits, your client’s circumstances including the fact that she does not have a deposit or advance rent, and the difficulties this poses for her, and the other points raised in your letter of [31] May 2005, the Council is satisfied that, regardless of whether the relevant period of time started on 22 February 2005 or 11 May 2005, the period during which accommodation has been provided has been sufficient to give your client a reasonable opportunity of securing accommodation.”

In her witness statement, Miss Harper, a Senior Assessor in the Council’s Housing Needs Department stated:

“28.

I was satisfied that regardless of whether the relevant period started on 22 February 2005 or 11 May 2005, the period during which accommodation was provided was sufficient to give the Claimant a reasonable opportunity of securing accommodation. In coming to this view, I had taken into account the following:

(a)

the scarcity of housing in the locality for people who are on benefits

(b)

the Claimant’s circumstances including the fact that she does not have a deposit or rent in advance and the considerable difficulties this poses for her and

(c)

the other points raised in the pre-action letter

(d)

the limited resources of the Council and the needs of other homelessness applicants”

The appellant submits that fuller consideration of the particular circumstances of the appellant was in any event required; the possibility of a further application to the Department of Work and Pensions for a Social Fund Loan, the prospect (which later accrued) of finding a landlord who did not require an advance payment, and the prospect of a successful search for accommodation over a wider location.

This is not a case in which it is difficult to identify the statutory duty. The duty with respect to accommodation is that it be made available for such period as the authority consider will give the applicant a “reasonable opportunity of securing accommodation for his occupation”. That is something conferred on the applicant; a right he acquires coterminous with the extent of the duty. While the authority can decide, subject to the supervision of the court under ordinary principles, what amounts to a reasonable opportunity, the expression does not permit them, in doing so, to have regard to considerations peculiar to them, such as the extent of their resources and other demands upon them. It is what is reasonable from the applicant’s standpoint, having regard to his circumstances and in the context of the accommodation potentially available.

In G, Lord Scott considered, at paragraph 118, the role of the word “reasonable” in provisions in the 1989 Act. In paragraphs in Part I of Schedule 2 to that Act, requirements are placed on the local authority to “take reasonable steps”; to “make such provision as they consider appropriate”; and to “take such steps as are reasonably practicable”; to achieve certain ends. Lord Scott stated:

“It is plain, in my opinion, that in relation to each of these specific duties the local authority can take into account among other things, its overall financial resources and, in particular, the cost of taking a specific step that, if taken, would benefit the child and meet some need. Whether the taking of a particular step is “reasonable” or “reasonably practicable” cannot be divorced from the financial implications of taking the step”.

An example of the use of the word “reasonable” in that sense also appears in Section 208 of the 1996 Act, cited at paragraph 22 of this judgment. I cite the paragraph from Lord Scott’s speech to make the distinction between the effect of the word reasonable in those paragraphs and its different effect in Section 190(2)(a). In deciding whether a step by the authority is reasonable, regard may be had to its own resources. In Section 190(2)(a), however, it is the opportunity given to the appellant which must be reasonable and not what is reasonable from the authority’s standpoint.

I accept that what is reasonable in the present context is to be assessed by reference to the particular needs and circumstances of the applicant. It should have regard to the possibilities open to the applicant, some of which have been described in this judgment. If the applicant is not making reasonable efforts to pursue the possibilities open to him, that will be a strong indication that he should not be given more time. Moreover, the word opportunity connotes something temporary, something that may lapse if not taken up, or if taken without achieving the result desired. A moment will normally be reached when, in spite of reasonable efforts, time will expire if possibilities have not come to fruition. It may be borne in mind that what is contemplated in Part 7 is temporary provision for homeless people and not, as in Part 6, long term allocation of housing.

That approach appears to me to accord with the statutory background and purpose of the 1996 Act. While it has been helpful to consider, in some detail, the statutory background, the appeal turns primarily, in my judgment on the ordinary meaning of what amounts to giving a reasonable opportunity.

With respect to the judge, I do not accept that the construction of Section 190(2)(a) I prefer creates a “virtually open ended obligation upon the authority to provide accommodation until such time as the claimant has obtained sufficient funding to rent property”. What amounts to a reasonable opportunity will depend on the particular circumstances but it is an assessment the authority are capable of making without converting it into a duty to meet the appellant’s needs. In this statutory context, a distinction is maintainable between giving a reasonable opportunity and giving such opportunity as will succeed in obtaining accommodation. The duty to provide a reasonable opportunity falls short of a duty to provide long term accommodation.

As to the second ground, provided the correct factors, and only the correct factors, have been taken into account, and the actual circumstances fully considered, the reasons for the authority’s decision may often be stated briefly. The point does not in the event require decision but I am doubtful whether Miss Harper’s analysis, at paragraph 28, of her witness statement (reproduced at paragraph 34 of this judgment) was sufficiently comprehensive in the circumstances.

I would allow this appeal.

I agree.

I also agree.