Ali (Mohram) v Tower Hamlets London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOLAN,LORD JUSTICE FARQUHARSON,LORD JUSTICE PARKER |
| Judgment Date | 02 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0402-4 |
| Date | 02 April 1992 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0329 |
[1992] EWCA Civ J0402-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
(Mr. Recorder Lockhart-Mummery QC)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Farquharson
and
Lord Justice Nolan
92/0329
MR. DAVID WATKINSON and Ms FRANCIS WEBBER (instructed by Messrs T. V. Edwards) appeared on behalf of the Respondent (Plaintiff).
MR. ASHLEY UNDERWOOD and Ms LISA GIOVANNETTI (instructed by the Acting Head of Legal Services) appeared on behalf of the Appellants (Defendants).
Mr. Mohram Ali is a married man with three young children. At all material times he and his family have been homeless within the meaning of section 58 of the Housing Act 1985, and have been living in temporary accommodation provided by the appellants (to whom I shall refer as Tower Hamlets) under section 63 of the Act. On 8th March 1991 Tower Hamlets sent him a standard form letter in terms reflecting those of section 64 and section 65. In effect, the letter conveyed the decision of Tower Hamlets that he was homeless, that he was in priority need of accommodation, that he had not become homeless intentionally, and that they did not propose to refer his application for accommodation to another housing authority. By virtue of section 65(2), that decision imposed upon Tower Hamlets a duty to secure that accommodation became available for the occupation of Mr. Mohram Ali and his family.
Section 69(1) sets out three ways in which the duty imposed by section 65(2) may be performed. In its original form the subsection read as follows:
"(1) A local housing authority may perform any duty under section 65 or 68 (duties to persons found to be homeless) to secure that accommodation becomes available for the occupation of a person
(a) by making available accommodation held by them under Part II (Provision of Housing) or under any other enactment.
(b) by securing that he obtains accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that he obtains accommodation from some other person".
A new section 69(1) was substituted for the original subsection by section 14(3) of the Housing and Planning Act 1986. It reads as follows:
"(1) A local housing authority may perform any duty under section 65 or 68 (duties to persons found to be homeless) to secure that accommodation becomes available for the occupation of a person—
(a) by making available suitable accommodation held by them under Part II (Provision of Housing) or any enactment, or
(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 he obtains suitable accommodation from some other person, and in determining whether accommodation is suitable they shall have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act".
Thus since the 1986 Act came into force local authority's such as Tower Hamlets are obliged to secure not merely accommodation, but suitable accommodation; and in determining what is suitable they must have regard to the matters referred to in the last three lines of the substituted subsection.
In early September 1991 Tower Hamlets purported to discharge their duty under section 69 by offering Mr. Ali the tenancy of 42 Carradale House, which is on the 6th floor of a block of flats. He refused the offer. He says in his affirmation, with the support of letters from his doctor, that he and his wife suffer from heart conditions and other ailments which make it undesirable for them to occupy accommodation above the level of the ground floor. He also says that he fears that he and his family, as members of the Bengali community, would be in danger of racial harassment if they lived in Carradale House, and this he supports with an affidavit on the subject of such harassment sworn by a former employee of his solicitors. Tower Hamlets considered his objections by way of an informal internal appeal procedure, but wrote to him on 27th November 1991 in these terms:
" 42 Carradale House, Poplar, E 14.
Your appeal against the above offer of permanent accommodation made available to you on 12–9–91 has been considered carefully but I regret to inform you that the appeal has not been allowed and you should sign for the tenancy at the local housing office by 2–12–91.
As you have been informed, my Council makes one offer only to homeless persons. If you are in temporary accommodation and do not accept the tenancy, this provision will cease as the Council, by making a reasonable offer of permanent accommodation, will have discharged its responsibility to you under the provisions of the Housing Act 1985, Part III and you will have to make your own arrangements for housing yourself and your family.
In the circumstances I must advise you that it would be in your best interest to accept this offer with no further delay".
Mr. Ali persisted in his rejection of the offered accommodation, and began proceedings against Tower Hamlets in the Bow County Court alleging breach of statutory duty on their part, and claiming an injunction ordering them to fulfil their duty under section 65 and section 69 of the Act, and also claiming damages. On 17th December 1991 the case came before Mr. Assistant Recorder Lockhart-Mummery Q.C. for him to determine, as a preliminary issue, whether the county court had jurisdiction to deal with the matter, or whether, as Tower Hamlets claim, the question whether they had discharged their statutory duty under section 69 could only be raised by way of proceedings for judicial review in the High Court. The learned Assistant Recorder determined the preliminary issue in favour of Mr. Ali, and Tower Hamlets now appeal to this court against his decision.
The issue is of considerable general importance. If Tower Hamlets are right, then the manner in which a local housing authority performs its duty under section 69 can only be challenged by the restricted methods for which Order 53 provides. The dissatisfied applicant for accommodation cannot challenge the suitability of the accommodation offered on its merits, nor even as of right. He must first obtain leave to move for judicial review and then, if he obtains leave, must succeed in persuading the court to help him in the exercise of its supervisory jurisdiction. On the assumption that the local authority has acted in good faith, and has followed the statutory procedures correctly, this will require him to satisfy the court not merely that the court itself would regard the accommodation as unsuitable, but that no reasonable council could regard it otherwise than as unsuitable.
Mr. Watkinson, representing Mr. Ali, urges us to reject the submissions of Tower Hamlets. He argues that as soon as Tower Hamlets acknowledged their duty to secure accommodation for Mr. Ali, which they did by writing their letter of 8th March 1991, Mr. Ali acquired a private law right to the provision of suitable accommodation, which right he could enforce in the county court. It would be for the court to determine whether or not the accommodation was in fact suitable. In support of that argument he produced no less an authority than the speech of Lord Bridge, with which the other members of the House of Lords agreed, in Cocks v. Thanet District Council [1983] 2 AC 286.
The House of Lords in that case was concerned with provisions in the Housing (Homeless Persons) Act 1977 which were in substantially the same terms as those to which I have referred in the Housing Act 1985 as originally enacted. There, as here, the applicant for accommodation had begun proceedings in the county court, claiming that the local authority was in breach of its duty to provide accommodation for him. But his claim raised broader issues. It evidently included an assertion that the local authority had wrongly decided that he was intentionally homeless. He relied on the decision of the Court of Appeal in De Falco v. Crawley Borough Council [1980] QB 460, in which it was held that an applicant for accommodation who wished to challenge the housing authority's decision that he was intentionally homeless could do so either by action or by application for judicial review. The relevant passage in the speech of Lord Bridge begins at page 292C of the Report and reads as follows:
"The procedural issue on which the appeal turns will naturally fall for decision in the light of the principles expounded in the speech of my noble and learned friend Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237 in which judgment has just been delivered. But before attempting to apply those principles, it is necessary no analyse the functions of housing authorities under the Housing (Homeless Persons) Act 1977. These functions fall into two wholly distinct categories. On the one hand, the housing authority are charged with decision-making functions. It is for the housing authority to decide whether they had reason to believe the matter will give rise to the duty to enquire or to the contemporary housing duty. It is for the housing authority, once the duty to enquire had arisen, to make the appropriate questions and to decide whether they are satisfied, or not satisfied as the case may be, of the matters will give rise to the limited housing duty or the full housing duty. These are essentially public law functions. The power of decision being committed by the statute exclusively to the housing authority, their exercise of the power can only be challenged before...
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