Bibi, R (on the application of) v London Borough of Camden

The claimant, Ms Nepur Bibi, was formerly married to Mr Joglur Rahman. They had two children, a daughter born on 11 December 1995 and a son born on 18 April 1999. They were divorced in Bangladesh on 6 February 2001, before each returned to the United Kingdom. The claimant and Mr Rahman had previously been granted a joint secure tenancy by the defendant, the London Borough of Camden, on 24 June 1996 of premises called 3 Bedefield, Cromer Street, London WC1. This was, as I understand it, a three-bedroomed property.

On 3 April 2002, Mr Rahman made an application to the defendant for re-housing, for himself and his two children. I was not provided with details of such application, but I was told that he asserted to the defendant that he had been the subject of domestic violence and harassment on the part of the claimant. He also asserted that he had the "sole care" of the two children. There was no evidence before me to indicate what, if any, enquiries the defendant at the time made of the claimant as to those assertions by Mr Rahman. Counsel appearing on her behalf before me informed me that she entirely rejected the accuracy of the assertions that Mr Rahman was then making. Be that as it may, Mr Rahman's application for re-housing was accepted on 8 April 2002, and he was offered and accepted three-bedroomed accommodation in the Borough.

On 25 April 2002, Mr Rahman served notice to quit in respect of the joint tenancy at 3 Bedefield, Cromer Street. On 24 June 2002, the defendant issued a claim for possession of the property in reliance on that notice to quit. The claimant put in a defence to that claim; but in the event the proceedings were adjourned generally on 4 February 2003, in the context of the claimant having by then made her own application for re-housing.

In the meantime, and before the claimant made her application for re-housing, there had been proceedings in the Principal Registry of the Family Division. On 9 January 2003, District Judge Redgrave made a residence order under section 8 of the Children Act 1989. Section 8 of the 1989 Act defines a residence order as meaning an order settling the arrangements to be made as to the person with whom a child is to live. By section 11(4) of the 1989 Act it is provided that where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned.

Rather unfortunately, perhaps, I was not shown any of the supporting evidence lodged in support of the application leading up to the making of the section 8 order; and neither counsel nor solicitors appearing before me had any involvement in that matter and so were not able much to assist in explaining how that section 8 order came to be made as it was. It is evident at all events on the face of the order that it was a consent order. It provided, in the relevant respects, as follows:

That section 8 order having been made, the claimant then notified the defendant of it in making her application for re-housing. The application was referred to the defendant's Exceptions Panel. On 3 April 2003, that Panel, having considered the application, accepted it and decided that the claimant should be re-housed. But it was only prepared to offer one-bedroomed accommodation, whereas the claimant had been seeking three-bedroomed accommodation to enable the two children to be with her as contemplated by the section 8 order. The defendant's stated position was that the children were adequately re-housed with their father and that the Council would not allocate two family units where the same children were involved, owing to the severe lack of accommodation of housing available to the defendant.

After legal correspondence, an application for judicial review in respect of that decision was issued on 1 July 2003. This was eventually compromised on 18 September 2003 on the basis of the defendant agreeing to reach a fresh decision.

On 9 February 2003, the Exceptions Panel reached its fresh decision. Clarification was sought and the decision was stated to have been in these terms, by letter from the defendant dated 17 March 2004:

The claimant was dissatisfied with this decision and a further claim for judicial review on her behalf was eventually issued on 9 April 2004. It sought an order quashing the decision and also an order that the defendant offer the claimant a three-bedroom property in accordance with the defendant's Housing Allocation Scheme. The grounds of claim variously assert that, in respect of the decision, it was ultra vires the defendant's Housing Allocation Scheme; that the defendant had failed to take into account relevant considerations or had taken into account irrelevant considerations and/or that the decision was one that no reasonable authority properly directing itself, could reach. Permission was eventually granted by Stanley Burnton J on 30 June 2004 after an oral hearing.

In order to put the decision of the defendant into context, it is necessary to set out some legal background.

The applicable statutory provisions are contained in Part VI of the Housing Act 1996 (as amended). The principal material provisions for present purposes are as follows:

By section 166 it is provided that a local authority should secure various matters as there provided. By section 166(3), this is stated:

Section 167, which is contained under the heading "Allocation Scheme", provides by subsection (1):

Then section 167(1A) provides:

Section 167(2E) provides as follows:

Section 168(1) provides that a local housing authority should publish a summary of their allocations scheme and provide a copy of the summary free of charge to any member of the public who asks for one. In section 169 it is provided that, in the exercise of their functions under that part, local housing authorities should have regard to such guidance as might from time to time be given by the Secretary of State, and it is further provided that the Secretary of State may give guidance generally or to specified descriptions of authorities.

The following part of the 1996 Act (as amended), Part VII, relates to homelessness. A rather different statutory regime is there set out. Section 176 provides:

In section 177(2) it is provided as follows:

Section 189(1) of the 1996 Act provides:

Guidance was in fact given by the Secretary of State, as contemplated by section 169 of the 1996 Act in the form of a detailed code issued in November 2002. Amongst other things, the code said this with regard to joint tenants at paragraph 3.9:

The defendant duly published its own Housing Allocation Scheme in, as I was told, July 2002, in the form presented to me. It is a detailed document, designed to be in plain English. Section 1 of the scheme is headed "Introduction". It reads as follows:

In section 3 of the defendant's Allocation Scheme, under the heading "Reasonable Preference", this, amongst other things, is said:

Pausing there, although it was stated in a subsequent witness statement on behalf of the defendant that the Exceptions Panel was there to provide flexibility for those who fall "outside" the Scheme, the more accurate explanation, as it seems to me, is that the Exceptions Panel is there to consider exceptional cases even for those falling within the scheme. Indeed, the fact that the Exceptions Panel has power to award extra points shows that the Exceptions Panel itself is designed to operate within the scheme.

Reverting to that scheme, section 5 is headed "Offers". This is said:

The defendant also operated a Re-housing Manual. That provided a definition of "dependent children" as follows:

It is against that context that Mr Evans, counsel for the claimant before me, has made his submissions. In essence, his submissions come to this:

The defendant has accepted responsibility to re-house the claimant. That being so, it must operate within the provisions of Part VI of the Housing Act 1996 (as amended) and its own Allocation Scheme. The question was as to what size of accommodation should be offered to the claimant, having regard to her housing needs.

The defendant, having granted three-bedroomed accommodation to Mr Rahman, was required likewise now to offer equivalent three-bedroomed accommodation to the claimant; and that is the only way to which effect can be given to the section 8 order of District Judge Redgrave.

The defendant, in any event, had failed to have regard to its own Allocation Scheme. The scheme does not state that there can be only one household in respect of parents having the same children. Nor has the defendant found that the claimant, with her children, were not a "family" or "household". Further, a finding that the children were adequately re-housed with Mr Rahman does not answer the point with regard to the needs of the claimant herself nor does it properly reflect the Allocation Scheme.

On 29 July 2004, the defendant put in a witness statement of Sharon Thobourne, its re-housing manager, designed, amongst other things, to amplify the reasons behind the decision. Mr Okoya, counsel for the defendant, was hardly in a position to dispute that I should have regard to it for this purpose, this being a statement put in on behalf of the defendant itself; and Mr Evans positively invited me to do so. This is said in Miss Thobourne's witness statement at paragraph 15:

More importantly, in paragraph 18 Ms Thobourne (having explained that the Exceptions Panel had consisted of herself, a senior mobility officer and a re-housing manager) said this:

On behalf of the defendant, Mr Okoya's submissions are in essence as follows:

It is for the Authority to formulate the details of its Allocation Scheme in accordance with Part VI of the 1996 Act (as amended); and thereafter a decision of the Authority can only be challenged on settled public law grounds.

The decision letter of the defendant showed that it had taken into account the bedroom standard set out in section 5 of the Allocation Scheme, and other relevant factors; and in that context the defendant was also entitled to have regard to under-occupation and to the acute shortage of accommodation available to the defendant within Camden; and the defendant had not taken into account irrelevant factors.

The defendant was not bound to provide two family-sized homes to each of Mr Rahman and the claimant. Rather, the section 8 order of District Judge Redgrave was simply a matter to be taken into account, and, as the decision letter itself showed, the defendant had indeed taken it into account.

The decision of the defendant was one which was in accordance with its Allocation Scheme and it was open to the defendant, acting reasonably, to reach such a decision.

Although I do not accept all the grounds advanced by Mr Evans, I have come to the conclusion that the decision of the defendant, as set out in its letter of 17 March 2004 and as subsequently explained, must be quashed.

I would say at once that I do not accept Mr Evans' submission that the defendant was required to offer three-bedroomed accommodation to the claimant just and solely because of the section 8 order made by District Judge Redgrave. Plainly, District Judge Redgrave would have made such an order by reference to the information provided to him, applying the welfare principle -- the children's interests being regarded as paramount. I can certainly see that a residence order under section 8 would then be a material, often perhaps a highly material, consideration for a housing authority to consider in an appropriate case under Part VI of the 1996 Act (as amended). But I do not see that a decision of this kind of a Family Court can operate positively to dictate the outcome of a subsequent decision of a housing authority, which has very different factual, policy and statutory considerations to apply as compared to a Family Court.

In the case of R v Oxford City Council ex p Doyle [1997] 30 HLR 506, a father of four children, the father being prospectively homeless, applied to the Authority for family-sized accommodation, sufficient to accommodate him and his children. He had first, notwithstanding his homelessness, succeeded in obtaining a joint residence order made by consent in the County Court (which in fact, I note, in that case was not a precise 50/50 kind of residence order). Thus equipped, he made his application as a homeless person under the provisions of Part VII of the Housing Act 1996. The Council refused to grant him family-sized accommodation; and a challenge to that decision was rejected by Tucker J.

In the case of Doyle, counsel for Mr Doyle proceeded on the footing that the residence order was a relevant but not determinative factor. Tucker J clearly accepted that as right. Although that was a decision in the context of homelessness under Part VII of the 1997 Act, in my judgment that is likewise the case under Part VI of the 1996 Act; that is to say, the making of a residence order is a factor to be taken into account by a housing authority, but it is not of itself decisive.

I should also add that, in that case, criticism was made of the authority in that it had, in making its decision, referred to the issue of under-occupation for part of the week and to the shortage of its housing stock. Tucker J rejected that criticism, indicating that those were matters that could properly be taken into account. Mr Evans nevertheless makes the same criticism in the present case. He draws attention, amongst other things, to section 177(2), contained in Part VII of the 1996 Act, and says that such considerations are not expressed to have any part to play under Part VI of the 1996 Act; and he further points to other differences in the statutory language and statutory purpose as between Part VI on the one hand and part VII on the other hand.

Nevertheless, I do not agree. I can see that such observations may be taken to be part of the assumed background by reference to which Part VI was enacted. But in my view, those considerations can also properly feature in decisions then made under Part VI and the applicable Allocation Scheme in question. I do, however, agree with Mr Evans that such features cannot of themselves be used actually to displace the policy and provisions of this defendant's Allocation Scheme. In other words, these too are factors that may be taken into account, but they are not more than that.

All that having been said, in my judgment, the essential flaw in the defendant's approach in its decision is this. By its decision letter of 17 March 2004, in effect five factors are stated as having been taken into account:

But that nowhere, in terms, addresses the issue of whether, for the purposes of section 5 of the defendant's Allocation Scheme, the children were "in her family" and what each "household" required. It may for this purpose here have been relevant to consider the position of the children with regard to Mr Rahman. But the question also, in my view, had to be asked and addressed as to the position of the children with regard to the claimant herself, in order to assess the claimant's own housing needs; and that the defendant, in its decision letter, seems simply not to have considered. It surely cannot be enough at all events that, Mr Rahman himself having (by persuading the authority that he had a "family" and "household") obtained three-bedroomed accommodation, in effect on a first-past-the-post basis, thereafter that of itself entitles the defendant, without more, to exclude the claimant from such a result for herself. Indeed, as Mr Evans observed, the decision letter seems to be focusing on the position more obviously applicable under Part VII of the Act, not Part VI.

It may be that the further witness statement of Ms Thobourne was designed to address those perceived difficulties. If so, it does not succeed in removing them. This is so, in my judgment, for a number of reasons.

First, there is no obvious basis for saying that the "children's main address" was Mr Rahman's "because" Mr Rahman was working and "therefore" he was the primary carer. Indeed, that is self evidently illogical. Likewise, the conclusion that he had "care and control" of the children, again is not obviously well-founded: unless it rests on the defendant's original decision based solely on Mr Rahman's representations, as it would seem, in April 2002. But that decision must, on any view, in any event thereafter be read in the light of the subsequent section 8 order and in the light of the actual state of affairs at the time of the claimant's own re-housing application.

Secondly, and for the like reasons, there is no other explanation given as to why the defendant decided that Mr Rahman was "the primary carer" of the children.

Thirdly, it cannot be the case that the shortage of housing stock in Camden and the issue of under-occupation can in themselves disapply the scheme as set out in the Allocation Scheme itself. Otherwise these factors would in any such case potentially be capable of, in effect, giving a residual discretion to the defendant to disapply the other provisions of the Scheme and, in effect, to decide the matter as it saw fit. That accords neither with Part VI of the 1996 Act nor with the wording of this particular Allocation Scheme itself.

Fourthly, it seems curious that only at the very last stage of the decision-making process -- as Ms Thobourne's witness statement would suggest -- was the bedroom standard of the defendant's Allocation Scheme applied. But this is something which should have been considered at the outset: because it was the application of the scheme to the claimant's own housing needs that was in issue here. In this context, Miss Thobourne's witness statement does at least confront the question of whether or not the two children were considered to be part of the claimant's household -- a question, as I have said, not obviously addressed or answered at all in the decision letter itself. Ms Thobourne's conclusion is that they were not. Why that is so is unexplained, notwithstanding the "50/50" section 8 joint residence order of District Judge Redgrave and notwithstanding also (and I regard this as important) the acceptance by the defendant that the terms of such joint residence order had, after it was made, been applied in practice by Mr Rahman and the claimant.

Moreover, paragraph 3.11.3 of the defendant's own Re-housing Manual regards such a situation as at least capable of being an exceptional case, whereby there may be two main addresses or households. That point is not obviously addressed by the defendant at all, either.

For these reasons, I consider that the decision cannot stand. Mr Evans invited me to go further and in effect declare that the only reasonable decision was for the defendant to offer the claimant three-bedroomed accommodation. But I do not answer this claim by saying that the decision was perverse, or that it could only be answered in one way. Rather I decide it on the basis that the decision was flawed in that the Exceptions Panel of the defendant adopted a wrong approach and took into account considerations which were either wrong or irrelevant. The matter will therefore have to be remitted for further decision by the defendant in the light of this judgment.

I would like, however, to add some general observations. I do so because Mr Okoya, understandably perhaps, expressed concern that shared residence orders made under section 8 of the Children Act 1989 might hereafter be sought to be utilised to give priority to divorced parents so that each ends up with family sized accommodation, in a context where local authority housing stock is invariably in short supply and where a sense of grievance may be occasioned to those others waiting in the queue. Further, although, as I would stress, my decision is based on the facts and circumstances of this particular case, experience teaches one that resourceful advocates nevertheless are adept at claiming that a decision on one case on its own facts can be a useful guide to a potential decision on another case on its quite separate facts. I was also told that, so far as counsel are aware, no other precedent exists as to this particular point for the purposes of Part VI of the 1996 Act.

My general observations are these:

First, each case will indeed depend upon its own facts and on the particular Allocation Scheme promulgated by the local authority in question.

Second, my decision is very much dependent in this case on the fact that here there was a precise "50/50" shared residence order made by the Family Court, and which thereafter was operated in practice as what I might call a "true 50/50" shared residence order. Clearly, where this is not so, where -- as will be usual -- a child under a residence order (if one is made at all) is to spend a greater part of the week with one parent than another, then it can readily be concluded that there is just one principal home (or "family address" or "household"), not two, for the purpose of the application of an Allocation Scheme under Part VI of the 1996 Act (as, indeed, the defendant's own Re-housing Manual notes).

Third, it seems that shared residence orders of the kind actually made in the present case are not likely to be at all frequently made. Mr Evans, keeping a weather eye on the potential implications of some of his arguments, stated that shared residence orders were "exceptional", citing re H [1994] 1 FLR 717 and R v Port Talbot Borough Council ex p McCarthy [1990] 23 HLR 203. But it may be that, in recent years, shared residence orders are becoming rather more frequent: see Halsbury's Laws of England 4th Ed. Vol 5-3, para 406, footnote 4. I note that in re A [2001] EWCA Civ 1795 they were described as being not necessarily exceptional. Even so, I apprehend that such orders, and at all events those of the 50/50 type, will be, relatively speaking, rare. There are clear reasons for this. For one thing there will be the understandable desire to secure for a child what might be described as "one principal home", in the interests of the child. For another, there will be a wariness as to the shuttlecocking that a shared residence order of such a kind may entail, with the consequential disruption and stress. Further, there will be the impracticality of such an order in many cases, simply because of the domestic, social or employment circumstances of one parent or the other or both. Yet further, such orders may well be inappropriate unless each parent is living relatively near to the other and to any school that the child may be attending.

Fourth, it may be that situations such as the present are of insufficient frequence not to cause local authorities to address them specifically in their published Allocation Schemes, pursuant to Part VI of the 1996 Act. But I would comment that the provisions of the Act would seem to entitle them to do so.

Fifth, this case has, not for the first time, highlighted the potentiality for tension between a section 8 residence order made in Family proceedings and a subsequent decision of a housing authority pursuant to the provisions of the 1996 Act. I feel diffident about expressing views concerning the approach to be adopted in the Family Courts, with which I personally have little familiarity. Obviously, the Family Courts will address each case on its own merits, applying the welfare principle as appropriate. But I would respectfully suggest that, in cases where a shared residence order under section 8 of the Children Act 1989 is being proposed, the parties in the Family proceedings should ordinarily provide to the Family Court specific evidence and details as to the precise accommodation which each parent can, or aims to, provide. If one or both parents is, or intends to be, providing local authority housing, then the precise availability of that housing should be addressed: particularly where such housing has not yet been secured. In cases of doubt, it may even be the case that the Family Court may wish to consider inviting representations from the housing authority or authorities in question. Ultimately, the Family Court's order must aim to reflect "the real position on the ground": see re Asupra; re F [2003] EWCA Civ 592. I do not wish to say that there will be at all many shared residence applications made collusively with a view not so much as to the interests of the children but with a view to securing for one parent or both parents better accommodation than they would otherwise ever have hoped to get. But in cases where appropriate accommodation is not already plainly secured at the time of the application, it would, I suggest, be useful if the district judge or other judge in the Family proceedings bears in mind that any order made may thereafter be presented to a housing authority; and housing authorities will have their own functions to perform with, moreover, a very limited supply of housing stock available to them.

Sixth, where a housing authority is in fact presented, on an application for re-housing, with a shared residence order, at all events of the 50/50 kind, in order to support an application by a parent for family-sized accommodation, the authority might be well advised to check if the section 8 order has, in practice, been applied in accordance with its terms.

In the result, on the facts of this particular case, the claim for judicial review succeeds and I quash the decision of the defendant with regard to the claimant.

MR EVANS: My Lord, the claimant is publicly funded. The claimant seeks its costs of the claim, to be the subject of detailed assessment.

MR OKOYA: I cannot resist, my Lord.

MR JUSTICE DAVIS: I will make such an order as to costs. Are there any other matters?

MR EVANS: My Lord, not at this stage.

MR OKOYA: My Lord, I presume the order will be that the matter gets remitted back to the Local Authority for a fresh decision?

MR JUSTICE DAVIS: Absolutely, and no doubt the Local Authority will take stock in the light of the judgment. This has been a very long-running matter and perhaps something can be sorted out without a further hearing being needed, but that is a matter for your client. Thank you both.