Birmingham City Council v Aweys & Ors

We are all sadly familiar with the shocking sight of the homeless sleeping on the streets, invariably because they have nowhere else to go. In this case they have been dubbed the “roofless” or “street” homeless. They may or they may not have sought help from their local authority housing department to find a roof over their heads.

There is another, but less obvious category of homeless person. These are the large families crammed into and cramped in accommodation which it is unreasonable for them to continue to occupy because of the overcrowding. They are the “homeless at home”.

The plight of both the roofless or street homeless and the homeless at home must concern each and every one of us fortunate enough to be well-housed. This case demonstrates, moreover, that we must also afford sympathy for the housing authorities up and down the land who have, as I shall set out, responsibilities for preventing homelessness in their districts and securing that sufficient accommodation is and will be available for the homeless. The local housing authority is under a duty to secure suitable accommodation for those not intentionally homeless who are in priority need. How can they discharge those functions when that accommodation simply is not available to meet the need? The dilemma is vividly posed by Collins J. in the judgment under appeal:

“4.

Each claimant has a large family and so requires accommodation which has more than three bedrooms. Such accommodation is not readily available in Birmingham. The defendant is the largest local authority in the country and at any one time has some 19000 people waiting for housing and a further 17000 awaiting transfer. In the year ending 31 March 2006, there were 9576 homelessness applications, which is apparently about 20% of all applications made in England. There is a limited stock and inner city clearance programmes coupled with the exercise of rights to buy reduce what is available. The defendant has entered into agreements with registered social landlords so that 50% of their vacancies are made available to it and, so far as possible, individuals are given advice to try to help them to find privately rented accommodation or accommodation out of the defendant's area.”

The solution adopted by the appellant, the Birmingham City Council, was to leave the homeless at home while they waited, Micawber-like, until something better turned up. They adopted an allocations policy giving preference to the street roofless above the homeless at home. On 26th January 2007, Collins J declared them to be in breach of their duty to secure suitable accommodation for the six appellants and he declared the allocation policy to be unlawful. The appeal is brought with the permission of Carnwath L.J. who noted that the issues raised in the appeal are of some general importance to housing authorities.

The code is contained in Part 7 of the Housing Act 1996 as amended (‘the Act’ or ‘the Act of 1996’). It deals with two classes of persons, the homeless and those threatened with homelessness and, as we shall see, the Act imposes different duties for each class. Section 175 defines the two classes. A person is homeless if he has no accommodation available for his occupation: see section 175(1) and a person is threatened with homelessness if it is likely that he will become homeless within 28 days: see section 175(4). Section 175(3) is important and perhaps crucial to this appeal. It is a deeming provision. It provides:

“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him continue to occupy.”

Section 177 sets the test for ascertaining whether it is reasonable to continue to occupy accommodation and, by virtue of section 177(2):

“In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard should be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.”

A person who believes himself to be homeless or threatened with homelessness and who is eligible for assistance under the Act (persons from abroad or asylum seekers being those who are ineligible), may apply to the local housing authority for accommodation or for assistance in obtaining accommodation. Under section 184(1), the first responsibility of the housing authority is to make such inquiries as are necessary to satisfy themselves

“(a)

whether he is eligible for assistance, and

(b)

if so, whether any duty, and if so what duty, is owed to him under the following provisions of the Act.”

The authority must then notify the applicant of their decision.

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and in priority need, then section 188 imposes an interim duty to secure that accommodation is available for occupation pending a decision as to the duty (if any) owed to him. Section 189 defines priority need. Section 191 deals with becoming homeless intentionally and, to show the symmetry within this Part of the Act for example with sections 175(3) and 177(2), I should read section 191(1):

“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”

We are concerned in this appeal with the “full”, or perhaps more accurately, the “main” duty to homeless persons with priority need, eligible for assistance and who are not homeless intentionally and this is governed by section 193. That provides as follows:

“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 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.

…

(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 the 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 this 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 6 (allocation of housing), or

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

(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 consequence of refusal and of the right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.

…

(7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer [as that is defined in sub-section (7D) 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.”

The duty owed in the case of threatened homelessness is different. Section 195(2) provides as follows:

“If the authority –

(a)

are satisfied that he has a priority need, and

(b)

are not satisfied that he became threatened with homelessness intentionally,

they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.”

The manner in which the local housing authority discharge their functions is set out in sections 205 and 206 as follows:

“205 (1) The following sections shall have effect in relation to the discharge by a local housing authority of their functions under this Part to secure that accommodation is available for the occupation of a person –

section 206 (general provisions),

section 208 (out-of-area placements),

section 209 (arrangements with private landlords).

…

206 (1) 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 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.

…”

I must also note section 210 on the suitability of accommodation:

“210 (1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regards to Parts 9 and 10 of the Housing Act 1985 (slum clearance and overcrowding) and Parts 1 to 4 of the Housing Act 2004.

…”

This is dealt with under Part 6 of the 1996 Act. Section 159 requires that a local housing authority shall comply with the provisions of this Part in allocating housing accommodation. The local housing authority allocate housing accommodation when they select a person to be a secure or introductory tenant of housing accommodation held by them, nominate a person to be a secure or introductory tenant of housing accommodation held by another person or nominate a person to be an assured tenant of housing accommodation held by a registered social landlord.

By virtue of section 167 every local housing authority shall have a scheme (their ‘allocation scheme’) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. Section 167 goes on to provide as follows:

“(2)

As regards priorities the scheme shall be framed so as to secure that reasonable preference is given to –

(a)

people who are homeless (within the meaning of Part 7);

(b)

people who are owed a duty by any local housing authority under section … 193(2) …;

…

The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of persons with urgent housing needs).

2(A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2): and the factors which the scheme may allow to be taken into account include –

(a)

the financial resources available to a person to meet his housing costs;

(b)

any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;

(c)

any local connection (within the meaning of section 199) which exists between a person and the authority’s district.

…

(6)

Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.

…

(8)

A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.”

Section 169 requires local housing authorities to have regard to such guidance as may from time to time be given by the Secretary of State in exercising their allocation function. Paragraph 5.9 of that Guidance requires authorities to have regard to the following considerations:

“(a)

the scheme must include mechanisms

(i)

ensuring that the authority assess an applicant's housing need, and for

ii)

identifying applicants in the greatest housing need;

(b)

the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167(2), over those who do not;

(c)

the reasonable preferences categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need;

(d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and

(e)

a scheme may provide for other factors than those set out in s.167(2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167(2).”

The Government has also issued a lengthy Code of Guidance pursuant to section 182 of the 1996 Act in relation to the exercise by authorities of their homelessness functions under Part 7. Paragraph 12 of the Introduction (offering an overview of the homelessness legislation) provides:

“If settled accommodation is not immediately available, accommodation must be made available in the short term until the applicant can find a settled home, or until some other circumstance bring the duty to an end ... A settled home to bring the homelessness duty to an end could include the offer of a suitable secure or introductory tenancy in a local authority's housing stock (or nomination for a housing association assured tenancy) allocated under Part 6 of the 1996 Act or the offer of a suitable tenancy from a private landlord made by arrangement with the local authority.”

The essential facts are agreed. The families of each of the respondents have been accepted by the authority to be homeless because they live in over-crowded accommodation which it would not be reasonable for them to continue to occupy. The authority owed to each of them the main duty imposed by section 193(2) of the Act to secure that accommodation is available for their occupation. The authority purport to discharge that duty by leaving them where they are whilst they hunt for accommodation large enough to house the families suitably.

Although that bald recitation may be enough for me to proceed to judgment on the points of law that arise, nonetheless it is instructive to see how the individual misfortunes add human drama to the black letter of the law. I am grateful to counsel for taking the trouble to set this out in an agreed joint chronology.

In the case of Mr Ali, the housing authority accepted the main housing duty owed to him as long ago as 26th June 2002. Mr Ali is registered as disabled. In about July 2002 they offered him a property which he refused, requesting a statutory review as to its suitability which was unsuccessful. He appealed and the appeal was settled upon the housing authority accepting that the property was not suitable so that it had not discharged its section 193 duty. In December 2002 a three bedroom property was offered in purported pursuance of the duty. Mr Ali accepted the offer and moved in with his wife and their four children. One of his children, now aged 6, is severely disabled and is not expected to live for more than another five years. Given their disabilities, Mr Ali challenged the suitability of the accommodation and in July 2003 the Council conceded, again in a statutory appeal, that the property was not suitable. Two more children have since been born into the family. In his case a mandatory order was made that the Council make him an offer of suitable accommodation within a week. He was duly offered premises which he rejected. The Council agreed those premises were not suitable and offered another property in July 2007. Again it was rejected and yet again the Council conceded that that property was not suitable. In September 2007 another home was suggested but rejected by the Council’s own occupational therapist and so that offer was withdrawn. At the time of the hearing of this appeal, Mr Ali was still waiting to be offered suitable accommodation, five years since the Council accepted their duty to secure suitable accommodation for him.

Mr Aweys arrived in this country as a refugee from Somalia. He had lost touch with his family. In December 2003 he was granted a tenancy of a two bedroom flat on the eighth floor of a block owned by the Council. In December 2004 he was joined by his wife and six children now aged between 18 and 10 years. He sought to make a homeless application to the Council which the Council would not accept, requiring him to complete a rehousing application form instead. After a threat to issue judicial review proceedings, the Council finally accepted his application in September 2005. Although one might think that the property was self-evidently overcrowded, the Council did not consider him to be homeless. He sought a review of that decision and finally in December 2005 the housing authority accepted that he could not reasonably be expected to continue to live in his two bedroom flat and so the duty arose under section 193. In response to his solicitor’s request that he be provided with temporary accommodation pending an allocation under Part 6, the Council decided he could stay where he was until “the City Council ha[d] fully discharged its duty to [him]”. In December 2006 an offer was made but withdrawn because the property was still under repair. Other properties were offered but accepted to be unsuitable. In April 2007 the repairs having been carried out, the property was considered suitable, was offered and accepted. He and his family were kept waiting about 16 months from when the main housing duty was accepted and 28 months from when he first sought to apply for assistance.

Mrs Abdulle is another appellant who is not in the homeless left at home category. She was evicted from her privately-owned accommodation through no fault on her part in March 2003 and the Council accepted that the full section 193 duty applied. She and her husband and six children, the eldest now 14 years old, stayed with friends in grossly overcrowded conditions until October 2003 when, following threats of an application for injunctive relief, she was provided with temporary accommodation. In June 2004 the Council made her an offer of a three bedroom property which she accepted but in respect of which she requested a statutory review. She was expecting a sixth child to be born in August 2004. The Council accepted that the duty remained undischarged and stated that a further offer of accommodation would be made. Her seventh child was born in August 2005. She was placed in priority band B. In February 2007 she was offered a five bedroom property but the offer was withdrawn by the housing association. At the date of the hearing of this appeal she was still waiting for an offer. She has been waiting for four and a half years.

Mr Adam was granted the tenancy of a two bedroom flat on the fourteenth floor of a purpose built block at a time when he was the sole tenant. In August 2003 his wife and five children joined him in the United Kingdom. He tried to make a homelessness application but was not permitted to do so. His solicitors intervened. In November 2005 the Council acknowledged that he was homeless and that the full duty was owed. Once again the Council took the view that it was reasonable for him to remain where he was whilst accommodation was sought for him. In December 2006 and in February 2007 properties were offered which were accepted to be unsuitable. In February 2007 a sixth child was born. In April 2007 he was offered accommodation which was accepted but a review was sought as to its suitability. The review decision accepted that the premises were unsuitable and the Council agreed to make a further offer. By the time of the hearing of this appeal no offer had been made. He has been waiting for two years.

Miss Sharif’s predicament seems even more extreme than the others. Eleven people were living in her three bedroom flat. The Council accepted that they owed her the main housing duty in February 2006 and she was offered permanent accommodation ten months later in December 2006.

Ms Omar had an assured shorthold tenancy of property. She made a homelessness application in July 2004 based upon overcrowding, rat infestation and damp. It was rejected in September 2005. A review was requested. Judicial review was threatened in February 2006 and in May 2006. The Council finally accepted that she was unintentionally homeless. She was offered accommodation in December 2006 which she refused. She was eventually suitably housed in October 2007 after a delay of 15 months.

Whilst I expressed sympathy for the housing authority at the beginning of this judgment, it is hard to condone the prevarication evident from that short account of the way these homeless people were treated.

It appears from the Council’s written response to the claim for judicial review that they applied a fixed policy to all those found homeless by operation of section 175(3) that they should wait until they were made an offer at some indeterminate future date of an alternative and long-term home usually under Part 6 of the Act in order to discharge its duty under section 193. The grounds for contesting the claim for judicial review included assertions that:

“The Housing Act 1996 does not impose any statutory duty on the local authority or give it any discretion to accommodate a person in the period between accepting a full duty to a homeless person and finding suitable permanent accommodation for him.”

“There is no duty on the defendant to find temporary accommodation pending allocation of permanent accommodation, nor is there any discretionary power. The duty is simply to find suitable permanent accommodation – so the local authority is in breach of duty if the applicant spends a day in temporary accommodation once a full duty has been accepted.”

Thus there was no dispute that the Council was in breach the moment after it accepted a duty to the claimants: the only question was whether or not the court should intervene and make a mandatory order for accommodation.

He came to these conclusions:

“20(1)(viii) [Aweys] is only homeless because, pursuant to s. 175(3) of the 1996 Act, it is and has since the decision of 21 December 2005 been recognised that it is not reasonable to expect him to continue to occupy his present accommodation. If so, it is impossible in my view to regard that accommodation as suitable. … if the s. 175(3) test is met, the person in question cannot be expected to continue there any longer. That being so, it cannot by any stretch of language, principle or imagination be regarded as suitable. It must fall below the line wherever that line is drawn …

20(5)(vi) Despite the fact that it was accepted that it was not reasonable to expect the claimant to continue to occupy the premises, the Council did nothing to provide her with suitable accommodation. … So long as the Council continues to accept, as it must on the evidence, that the claimant is homeless, it is impossible to argue that the accommodation is suitable, however temporary it may be expected to be. …

21.

I am satisfied … that the defendant has failed to deal with the claimants in accordance with the provisions of Part VII of the 1996 Act. It is important that councils should appreciate that, if they decide that the s.193 duty will only be discharged by the provision of settled accommodation and particularly if that is to be accommodation provided by them under Part VI of the Act, they must ensure that in the meantime the homeless person is provided with suitable accommodation. For the homeless at home, their existing accommodation can never be regarded as suitable, even for a short time, since they are only homeless if it is not reasonable to expect them to continue to live there.

22.

Ms Rowlands has made the point that it may be better for a family to remain in unsuitable accommodation for a period rather than be moved temporarily, perhaps to another area, so that there will be more than one upheaval. Equally, she has submitted that the court has recognised that councils cannot be expected to achieve the impossible and so a period of time must be allowed for some alternative accommodation to be found. The court has a discretion whether or not to grant relief and must recognise the difficulties which councils have in finding suitable accommodation particularly for large families. …

23.

I accept that families may sometimes prefer to remain in unsuitable accommodation for a short time rather than move to temporary accommodation. But councils must recognise that it is a breach of their duty to require them to do so. There must be discussion leading to agreement and no compulsion. Equally, it must be clear that the length of time before proper accommodation is found will be short. It is to be noted that 6 weeks is regarded as the maximum period during which bed and breakfast accommodation should be provided. I do not suggest that that is a rigid maximum period for all purposes, but it is a guide to what will be regarded as unreasonable. Any longer period will need clear justification such as, for example, a certainty of suitable accommodation which will discharge the duty becoming available in a few weeks.”

In the result the judge made the declarations that the council were in breach of their duty.

Mr Ashley Underwood Q.C., leading Ms Catherine Rowlands in this Court, invites us to accept that the housing authority can lawfully decide that a person who has been accepted as homeless because his accommodation is not reasonable for continued occupation, may be required, in the performance of the authority’s duty to secure suitable accommodation for him, to remain where he is for a short further period. He submits with his characteristic economy that whether accommodation is suitable will turn upon, among other things, the length of time for which the person is expected to remain there. He relies upon the speech of Lord Hoffmann in Reg. v Brent L.B.C., Ex Parte Awua [1996] 1 A.C. 55, 68 A-C:

“there 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. …

… the 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. A local housing authority could take the view that a family like the Puhlhofers, put into a single cramped and squalid bedroom, can be expected to make do for a temporary period. On the other hand, there will come a time at which it is no longer reasonable to expect them to continue to occupy such accommodation. At this point they come back within the definition of homeless in section 58(1).”

Thus he submits that accommodation can be suitable and reasonable for the applicant to occupy for a limited period of time if it is offered as temporary accommodation pending allocation of permanent accommodation even if it is overcrowded and would otherwise be unsuitable for permanent accommodation. He does not flinch from submitting that there is nothing wrong with deciding on the one hand that, when answering the homelessness question under section 175(3), the family cannot reasonably be expected to remain in overcrowded accommodation indefinitely, yet, on the other hand, that the overcrowded accommodation is still to be regarded as suitable within the meaning of section 210 provided it is offered for a short time only. In other words, the same accommodation is both unsuitable for one purpose, yet suitable for another.

He submits that the duty under section 193(2) is a continuing duty which arises when the homelessness decision is taken and which ends when and only when accommodation is secured in one of the ways provided by section 206. If the local housing authority provide temporary accommodation, the duty is being discharged even if not completely discharged. He submits that a reasonable time must be afforded to the local housing authority to secure that accommodation and he complains that Collins J.’s judgment that an applicant must be relocated forthwith has a very significant effect on the operation of the Act and on the resources of local housing authorities. If the housing authorities are required forthwith to relocate all those applicants whom they find to be homeless because of the overcrowded conditions in which they live then the financial consequences will be dramatic. Moreover if leaving the homeless “at home” even for a short while is a breach of the main duty, then he warns that it will become increasingly difficult for applicants to pass the test and to be found homeless, which, I note, was the way the housing authority treated overcrowding in Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 1000.

Mr Jan Luba Q.C. was retained to argue the case for the respondents in this Court. He took us on a grand and informative tour of the Act to demonstrate that Part 7 is a self-contained code of interlocking provisions with an internal symmetry accurately reflected in the judge’s judgment. So, if it would not be reasonable to expect a person to continue to occupy accommodation he is treated as homeless (section 175(3)) and he would not be regarded as intentionally homeless if he ceased to occupy that accommodation in which he could not reasonably be expected to stay (section 191(1)).

In cases like these, the question for the local authority as to whether an applicant is homeless or not can produce three possible answers:

From the moment it is decided that he is homeless, eligible for assistance and has a priority need then the main duty arises under section 193(2) to “secure that” suitable accommodation becomes available for the applicant. That requires the housing authority to take positive measures itself to obtain alternative accommodation having regard to the three alternative means prescribed in section 206 for doing so: the scheme does not permit or contemplate the applicant simply being left where he is even temporarily. If he is left where he is, the applicant will continue to be homeless because it remains unreasonable for him to continue to occupy that accommodation. He must be treated as having no accommodation.

He submits that “accommodation” must be construed in the same way wherever the word appears in the Act. In legislating to reverse Puhlhofer v Hillingdon L.B.C. [1986] A.C. 484, Parliament introduced qualifications to “accommodation”: it had to be “reasonable” for determining the homelessness question but “suitable” for the performance of the housing duty. Suitability can depend upon the time a person is expected to occupy the accommodation. His main submission, as I understood it, was that unless the accommodation is reasonable to occupy, it is not to be treated as accommodation for any purpose at all and no question of its suitability and its temporal adjunct arises.

During the course of the hearing before us the argument ranged widely covering, probably at my mistaken prompting, such questions as (1) the scope of the main duty; (2) when it arose; (3) what time, if any, was to be afforded to the housing authority to find the accommodation they were to make available before it would be in breach if the section 193(2) duty; (4) if in breach, whether any and of so what remedy lay for that breach in proceedings for judicial review; (5) whether such temporary accommodation as may be offered has to be suitable; and, (6) if, as apparently often happens, temporary accommodation is offered as staged accommodation pending the complete performance of the duty, whether there a continuing breach of the duty until that final offer is made and rejected? Attempts in the past to answer some of these and related questions have not proved easy or satisfactory. As Lord Hoffmann observed in Awua at p. 71C-D the courts had to resort to a “refined and artificial doctrine” to answer “an unnecessary problem of its own making”, namely, “Does this mean that until such time as the Council has found permanent accommodation it is in breach of its statutory obligation?”

I confess I find these difficult questions to answer and, having given the matter careful consideration, I have concluded that they do not need to be resolved in this appeal and that it would be wiser not to expand this judgment by attempting to do so. Some may arise soon in other cases pending appeal before the Court such as Richards v Ipswich Borough Council where the issue may be whether accommodation provided in a refuge can be suitable to discharge the main duty and Manchester City Council v Moran where the local housing authority’s reviewing officer had determined that the women’s refuge had been accommodation which was available for the applicant’s occupation and which it would have been reasonable for her to continue to occupy for the purposes of section 191. It is far better that we confine this appeal to the narrow question Mr Underwood invites us to decide, namely, is it a lawful discharge of the Council’s duty under section 193(2) to leave a homeless family in the accommodation they were occupying in circumstances where they were found to be homeless because it would not be reasonable for them to continue to occupy those very premises? Put shortly, can they leave the homeless at home for a temporary period while they hunt for permanent accommodation?

I have reached the firm conclusion that the answer to that question is, “No”. The duty arises as soon as the local housing authority are satisfied that the applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. A person is not homeless if he has accommodation available for his occupation. The relevant appellants were tenants of their respective flats and remain tenants so that the premises continue to be available for occupation. But they are rendered homeless because it would not be reasonable for them to continue to occupy that accommodation and by virtue of section 175(3) they are not be treated as having accommodation. From the moment of the decision that they are homeless, the law treats them as being without accommodation.

The section 193(2) duty is to secure that accommodation is available for occupation by them. The words in section 193(2) replicate the words in section 175(1). “Accommodation available for occupation” must bear the same meaning in both sections: see Awua. Thus if it is not accommodation for section 175(1) purposes in determining whether or not they are homeless it cannot be accommodation for section 193(2) purposes for discharging the obligation there imposed. Leaving them where they were, even for a temporary period, still leaves them homeless and the local authority will have done nothing to discharge its duty.

Mr Underwood relies heavily upon the speech of Lord Hoffmann in Awua at p.68A-C set out at [28] above. And so he correctly asserts that there 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. His error is to fail to see that the temporary accommodation of which Lord Hoffmann was there speaking was a perfectly acceptable “short life” house let to the council by a private landlord. There was no question about it not being reasonable to expect Ms Awua to continue to occupy it. Consequentially it was “accommodation”. Contrast the position here where the families are deemed to be without accommodation. The issue in that appeal was whether the accommodation had to be a settled home. That was the argument that was rejected. Lord Hoffmann said at p. 69H-70A, inserting the 1996 Act sections:

“I would therefore hold that accommodation in section 175(1) and 191(1) means a place which can fairly be described as accommodation (… Puhlhofer …) and which it would be reasonable, having regard to the general housing conditions in the local housing authority’s district, for the person in question to continue to occupy (section 175(3) and 177(2)). There is no additional requirement that it should be settled or permanent.

The same is in my view true of the “accommodation” which the local authority is under a duty to make available to an unintentionally homeless person under section 193(2).”

It follows, in my judgment, that the local housing authority are in breach of their main duty if they do no more than leave the homeless family at home. I would therefore uphold the declarations made by Collins J. and dismiss the appeal.

The relevant features of the Council’s published allocation scheme were described by the judge as follows:

“18.

The defendant's Allocation Policy is a substantial document running, together with 11 Appendices, to 81 pages. It was produced in January 2005. At its outset, it states that the Council operates a single housing register for applicants and tenants and that all allocations are made on the basis of housing needs priorities unless exceptional circumstances exist. There are 5 Bands (labelled A to E) of priorities. Those in A and B will have their applications reviewed quarterly; the rest will be reviewed annually. The need which gives the highest priority will determine the appropriate Band. Those who qualify on more than one basis (for example, being homeless and having a disability) will get priority within the Band over those who have only a single qualification. The assignation of a Band for homeless persons is dealt with in Paragraph 11.1; 11.1.2 and 11.1.3 are particularly material. They provide:-

"11.1.2

Homeless households who have been placed in temporary accommodation (for example, bed and breakfast) by the Council awaiting permanent rehousing because the Council has accepted that it has a duty to rehouse them are placed in Band A.

11.1.3

Homeless households whom the Council has accepted that it has a duty to rehouse but who are not currently in temporary accommodation arranged by the Council (for example people who are living with parents or friends while awaiting rehousing) are placed in Band B."

Those who are not in priority need are placed in Band C and those who are intentionally homeless in Band D.

19.

The policy records that accommodation must always be suitable. That means it must be of a size to accommodate the whole family and should be in a location that was requested or as far as possible to the applicant's area of choice given the availability of stock and the urgency of any needs. If there is little possibility of meeting the applicant's needs or preferences within a reasonable time, staff will discuss with the applicant the possibility of widening the area of choice or other matters which may increase achievability (see p.51). In Appendix 7 it is said that the Council may agree that a household is overcrowded even if it does not meet the statutory rules.”

In explaining how properties are evaluated, the allocations policy explained that:

“This type of accumulative needs-based banding ensures that those in the greatest housing need are prioritised for housing.”

The Priority Bands set out various categories to which preference is being given. Within Band A are “households placed in statutorily-provided temporary accommodation by the Council as homeless”. Within Band B are “priority need homeless not in statutorily provided temporary accommodation.” “Temporary accommodation” is described in the glossary as follows:

“The Council uses several types of temporary accommodation to house homeless people while homeless investigations are carried out, to satisfy the legal requirement to house intentionally homeless people for a reasonable period or to house priority need and non-intentionally homeless people until a suitable offer of permanent accommodation can be made from the housing register. Temporary accommodation includes both council run and voluntary hostels, respite accommodation, dispersed hostels and tenancies given on a non-secure basis, which do not satisfy requirements to discharge homeless duty. Occasionally bed and breakfast accommodation is used.”

He held:

“27.

If the council wishes to avoid the need to provide temporary accommodation, it must give priority to all those to whom the duty under s.193 is owed. It is in my view impossible to justify the division between Band A and Band B. Each is in temporary accommodation and those who are homeless at home and so relegated to Band B are in unsuitable accommodation so that there is an ongoing breach of duty. Those in other temporary accommodation because they were roofless may be in suitable accommodation and so hardly deserve priority over those who are in unsuitable accommodation. There is a real concern that the council's approach is driven by the financial advantages that flow to it from being able to show that it is making less use of temporary accommodation in that homeless at home are not regarded as being in temporary accommodation (although as a matter of fact they clearly are). Thus the policy as it stands is incapable for the homeless to whom the full duty is owed of complying with Part 7 [sic this should read ‘Part 6’] of the Act. It is thus in that respect unlawful.”

The Council contend that the judge erred in holding that its allocations policy was unlawful in that it differentiated between those who were homeless at home and those who were in temporary accommodation provided by the Council. Mr Underwood submits:

(a)

the judge’s ruling was based on a false premise;

(b)

he wrongly held that the Council was not entitled to take financial considerations into account when formulating its policy;

(c)

he purported to determine priorities between the homeless himself, whereas that determination is one for the Council;

(d)

he held that “the policy as it stands is incapable for the homeless to whom the full duty is owed of complying with Part VII of the Act” whereas any analysis of the legality of the policy must be based on Part VI of the Act.

As to Mr Underwood’s first point that the judge proceeded upon a false premise, for the reasons I have attempted to set out, I do not see him making any error in his dealing with the homelessness point. He correctly concluded that the Council were operating a scheme for securing accommodation for the homeless at home which was unlawful. Those in category B, i.e. those not in statutorily-provided temporary accommodation because they were left at home, were in a category which was unlawful because of the Council’s breach of duty to them. Those homeless at home ought to have been in temporary accommodation just as the street homeless had been placed in temporary accommodation. There was no justification for the distinction. The same duty was owed to each and their treatment should have been the same. There was, therefore, no justification for having the homeless in different bands. For that reason alone the appeal on the allocation issue should be dismissed.

The banding is irrational for another reason. Those in Band A are at least in “accommodation” even if it is temporary accommodation. Those in Band B must be treated as having no accommodation available to them. Since the policy is geared to giving greater priority to those with greater need, a proper application of the principles derived from Part 7 would, if anything, elevate the homeless at home above the homeless now placed in proper but temporary accommodation.

As for the second argument about financial considerations, I do not understand the judge to be holding that the Council were not entitled to have regard to the resource implications. He was expressing a real concern that the Council’s approach was driven by financial advantage. But that expression of concern does not seem to me to amount to a finding of that effect. Since the first point is fatal to the appeal, this point does not matter even if, which I very much doubt, this very experienced judge was truly denying a local authority their right to have regard to the financial consequences of their decisions.

The third point is that the judge was again trespassing in the Council’s domain by determining priorities for himself. He did not. Having found that the scheme was unlawful, he left it to the Council to devise an alternative scheme and that has been done.

As for the fourth point, it is clear to me that there was a typographical error made in transcribing the judgment. It is plain that the judge intended to refer to Part 6 not to Part 7 and so this point falls away.

Mr Underwood draws comfort from R (on the application of Lin) v Barnet L.B.C. [2007] EWCA Civ 132, [2007] H.L.R. 30. I cannot see why. This case concerned preferences given between the homeless and others. It does not bear on the issue before us which is the differentiation between the homeless who have been given different treatment when in fact they are owed the same duty and are entitled to equal treatment.

For those reasons I would dismiss this part of the appeal also.

As is apparent from my opening observations, I appreciate that this judgment may be received with alarm by local authorities who cope with great difficulty even in assisting the homeless and giving them a life line of last resort. Having to find temporary accommodation for every homeless family, even the homeless at home, will doubtless add to their burdens. If the fulfilment of that duty is proving impossible, it is for the legislature to consider whether their position can be ameliorated.

I have read the judgment of Ward LJ. With the qualification set out in [61] to [66] below, I agree with him on both issues. In this judgment, I add some general observations about my approach to the interpretation of the relevant provisions, and then make some additional points about the issues arising on these appeals.

As Ward LJ has so clearly explained, homelessness is a large social problem directly and substantially affecting the lives of many people in the United Kingdom, and those who depend on them, including young children. The causes are no doubt manifold: they include not only poverty but relationship breakdown and the shortage of suitable and affordable accommodation in the private sector. There has been legislation on this subject for several years.

The current legislation is principally to be found in the Housing Act 1996. Though succinct, it is wide in scope. The following examples demonstrate its width. The Housing Act 1996 requires local authorities to provide accommodation for those appearing to qualify for housing assistance even before it has made its decision as to whether they in fact qualify (s 188). It provides for the accommodation of the homeless on the basis of vulnerability and need, rather than financial means (s 189). Even for the intentionally homeless, who are often vulnerable individuals, there is an obligation to ensure that accommodation is available for their occupation for such period as the local authority considers will give them a reasonable opportunity of securing accommodation for their occupation and to provide assistance by way of advice, provided that they meet the conditions for eligibility (s 190). This is no doubt a life-line for some.

Parliament has thus enacted detailed provisions to help alleviate the well-known consequences of homelessness. In my judgment, the court should approach questions of interpretation on the basis that Parliament has demonstrated the intention (1) so far as possible to provide an effective safety net for all those who qualify for housing assistance and (2) to lay down clear and humane rules for the delivery of accommodation to those whom it wishes to help.

The core duty of the housing authority under Part 7 of the Housing Act 1996 (“the 1996 Act”) is to provide accommodation: see s 193(2) set out in [9] above. As the duty is enforceable by the court, and does not merely constitute a target duty, the relevant provision in fact confers an enforceable right. The right is a socio-economic one and in some jurisdictions ( for example South Africa) it has the status of a constitutional right.

The right is of course subject to the restrictions in the 1996 Act. The restrictions primarily relate to eligibility, priority need and the requirement that the applicant should not be intentionally homeless.

As to the content of the core duty (or right), it is significant in my judgment that the legislation does not, as in some other jurisdictions, protect only the roofless homeless. The legislation also protects the homeless at home. The core duty in fact draws no distinction between them. The same provision (s 193(2)) applies to them both. The duty is to secure that accommodation, meaning by implication accommodation which it is reasonable for them to occupy, is available for occupation by the applicant. If there is a distinction between the two groups, and the homeless at home can be left in accommodation already accepted to be unreasonable for them to occupy, then the 1996 Act fails to provide an effective safety net for a substantial number of people who fall within the statutory definition of homelessness. In my judgment, there is no provision in the statute to justify the conclusion that in general the authority’s obligations in respect of homelessness are discharged, even for a temporary period, so long as the applicant is only living in the overcrowded accommodation on a temporary basis only. For the reasons given by Ward LJ, the speech of Lord Hoffmann in R v Brent LBC ex parte Awua [1996] AC 55 does not support this conclusion. I therefore accept the submission that the passages from the speech of Lord Hoffmann quoted at [28] above relate to reasonableness to occupy accommodation: see in particular the final sentence of the quotation. As I demonstrate below, reasonableness to occupy is the yardstick by which a person is treated as having or not having accommodation for the purpose of the statutory definition of homelessness in s 175 (see [5] above). Lord Hoffmann is not dealing with a situation where the applicant has been held to be homeless by reference to the very accommodation which the local authority relies on as discharging its duty on a temporary basis.

Reference has been made to the pressure on a local authority’s housing stock. S 177(2) is relevant here because it enables the authority in certain circumstances to have regard “to the general circumstances in relation to housing in the district”. But the local authority will have already taken those matters into account for the purpose of assessing the question of reasonableness of the applicant continuing to occupy accommodation in the process of making its decision as to homelessness.

In the judgment of Ward LJ, it is unnecessary to deal with any further question as to the time within which the duty under s 193(2) may be performed. I am, however, concerned that another answer to the first issue may be that the local authority has an interval of time for finding accommodation that satisfies its duty under s 193(2). I therefore consider that it is necessary to address the further question, to which I now turn.

The core duty in s 193(2) is not qualified by any expression defining the time within which the duty is to be performed. Moreover, the duty is not qualified by some such word as "forthwith". Equally, it is not watered down by some such words as “as soon as possible”. Nor is the duty expressed in terms of best endeavours or taking reasonable steps (c.f. s 195(2) set out in [10] above).

We were referred to Codona v Mid-Bedfordshire DC [2005] HLR 1. In that case, this court held, applying the earlier decision of the judge in R v Newham LBC ex parte Begum (1999) 32 HLR 808, that the court would not make an order to force a local authority to do the impossible (see [38] per Auld LJ, with whom Thomas LJ and Holman J agreed). This court added that the duty of the authority:

“was to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of that period depending on the circumstances of each case and the accommodation available”.

This would mean that the local authority only had to provide accommodation under s 193(2) within a reasonable time. However, the point did not arise for decision and is therefore not binding on this court. Moreover, this court was stating propositions suggested by the decided authorities and did not expressly state that they were going no further than Collins J had done in ex parte Begum, the only authority cited on the point now under scrutiny. In all the circumstances, I consider that the passage I have cited neither prevents nor should persuade this court from coming to a different conclusion.

In my judgment, the key point is that section 193(2) is expressed in terms of producing a result, namely securing accommodation to be made available. Because the duty is expressed in terms of securing a result, and the context is homelessness, which of its nature requires some urgent action, I do not consider that there can properly be an implication into the statute that it is sufficient to comply with the duty imposed by s 193(2) within a reasonable time. However, I would not (at least without further argument) rule out the possibility that the court may decline to make a mandatory order against a local authority to perform its duty to secure accommodation for an applicant in a case where the local authority is placed in what is in effect an impossible situation (see ex parte Begum, above).

In conclusion, subject to the last point, it would not in my judgment be open to the local authority in a case such as the present cases to assert that it was entitled to rely on having an interval of time for the performance of its duty.

This subject arose in the course of argument. A person who is accepted to be homeless at home may be offered alternative accommodation on a temporary basis (see Awua). He may, however, in practice prefer to stay where he is until some more permanent accommodation is available for him. I see no difficulty in law in an applicant, if he chooses, opting to stay where he is while the local authority seeks more permanent accommodation which it is reasonable for him to occupy, but as he would be giving up his statutory right to be accommodated in that temporary accommodation, and on general principle, he would have to give a fully-informed and free consent.

The present proceedings have been brought by way of judicial review and the question whether the proceedings in respect of the first issue could have been brought under s 202(1)(b) has not been argued. I would wish to reserve for further argument whether, had the parties desired to litigate the first issue alone, they would have needed to bring judicial review proceedings or whether the statutory procedure is available. There would clearly be advantages to the court and the parties if that procedure could be used.

Although the core duty is about securing “accommodation”, the relevant provisions do not contain any definition of “accommodation” as such. But it is clear that various provisions focus on different features of the accommodation in question. I have found three types of relevant feature in the legislative scheme. Thus:

Once it is appreciated that the local authority has proceeded on the wrong basis in setting the preferences in its housing allocation scheme, the second issue largely answers itself and for the reasons given by Ward LJ the invalidation of the automatic giving of preference to the roofless homeless over the homeless at home in the allocation scheme must follow.

Finally I would pay tribute to the clarity of the judgment of the judge, who has considerable experience of judicial review applications in this area of law.

I agree with both judgments