Awua v Brent London Borough Council

JurisdictionUK Non-devolved
JudgeLord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Slynn of Hadley,Lord Taylor of Gosforth,Lord Hoffmann
Judgment Date06 July 1995
Judgment citation (vLex)[1995] UKHL J0706-2
Date06 July 1995
CourtHouse of Lords

[1995] UKHL J0706-2

House of Lords

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Slynn of Hadley

Lord Taylor of Gosforth

Lord Hoffmann

Regina
and
London Borough of Brent
(Respondents),
Ex Parte Awua (A.P.)
(Appellant)
1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Goff of Chieveley
2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

Lord Jauncey of Tullichettle
3

My Lords

4

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

Lord Slynn of Hadley

My Lords,

5

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

Lord Taylor of Gosforth
6

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

Lord Hoffmann

My Lords,

7

Miss Awua came to this country from Ghana in 1980. From 1988 until 1991 she lived with a man in the London Borough of Tower Hamlets. They had two children. While she was pregnant with her second child the man told her to leave. On 18 June 1991 she applied to the Tower Hamlets council, as a local housing authority with which she had a local connection, for accommodation. The council, after making enquiries pursuant to section 62(1) of the Housing Act 1985, determined on 7 October 1991 that she was homeless or threatened with homelessness, in priority need and not intentionally homeless. It thereby accepted that it had a duty pursuant to section 65(2) to "secure that accommodation becomes available for [her] occupation." She and her children were at first accommodated in a hotel but as from 31 January 1992 the council made accommodation available to her in a two bedroom flat at 10b Clarendon Road, E. 11. It was in a "short life" house let to the council by a private landlord and the council's intention was that Miss Awua should stay there until they could offer her more permanent accommodation. In March 1992 the council arranged for the Peabody Trust to offer her a flat at 10, Jellicoe House, Shipton Street E.2. It was explained to Miss Awua that the council's policy was to make only one offer. If she refused an offer of accommodation which the council considered "suitable" (see section 69(1)) it would regard its duty under section 65(2) as discharged and make no further offer. It would also require her to leave the accommodation at 10b Clarendon Road. Miss Awua, having viewed the flat, did not like it. She refused the offer. It was at first contended that she was entitled to do so because the council could not reasonably have regarded it as suitable. But that argument has not been pursued. It is accepted that the council's duty was thereby discharged. The result was that she was given notice to quit 10b Clarendon Road.

8

In these straits, Miss Awua applied to the London Borough of Brent, with which she also had a local connection. Brent conducted its own investigation under section 62(1) and determined that she was homeless and in priority need but intentionally homeless because her eviction from 10b Clarendon Road had resulted from her decision not to accept the offer of 10 Jellicoe House. It therefore declined to accept any greater responsibility for her accommodation than that imposed by section 65(3) in respect of persons in priority need but intentionally homeless, namely a duty to secure that accommodation is made available "for such period as they consider will give [her] a reasonable opportunity of securing accommodation for [her] occupation" and to furnish her with advice and assistance.

9

Miss Awua applied to the Divisional Court for judicial review to quash Brent's decision that she was intentionally homeless. Section 60(1) defines intentional homelessness as follows:

"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."

10

Sir Louis Blom-Cooper Q.C., sitting as judge hearing the Crown Office list, decided that ceasing to occupy 10b Clarendon Road could not have resulted in intentional homelessness because the accommodation to which the section refers must be "settled" and not temporary. Nor could Brent say that Miss Awua had ceased to occupy 10 Jellicoe House because she had never moved into it: see R. v. City of Westminster, Ex parte Chambers (1982) 6 H.L.R. 24. He therefore quashed the decision. The Court of Appeal affirmed the decision in respect of 10 Jellicoe House but disagreed with the conclusion that 10b Clarendon Road was not "settled" accommodation. It held that, having regard to the fact that Tower Hamlets had accepted the full housing duty under section 65, Brent was entitled to regard the accommodation at 10b Clarendon Road as settled. Miss Awua invites your Lordships to reverse this decision and restore that of the judge. The Council does not seek to challenge the finding that Miss Awua did not "cease to occupy" 10 Jellicoe House.

11

There is no reference to "settled" accommodation in section 60(1). It refers simply to "accommodation". The same word is used in other sections in Part III of the Act, including the basic definition of "homeless" in section 58(1): "A person is homeless if he has no accommodation in England, Wales or Scotland." So if the word "accommodation" has the same meaning in section 58(1) as it does in section 60(1) and means settled accommodation, then a person in temporary accommodation, however suitable and comfortable, is homeless.

12

Until certain amendments introduced by the Housing and Planning Act 1986, the Housing Act 1985 contained no definition of "accommodation". Its undefined meaning in the context of homelessness was considered by this House in Puhlhofer v. Hillingdon London Borough Council [1986] A.C. 484. Lord Brightman, with whom all the rest of their Lordships agreed, said that it was impossible to imply that the accommodation should be "appropriate" or have any quality except that of being fairly described as accommodation. As an example of shelter which would have failed this test, he instanced Diogenes's tub. The modern equivalent would be the night shelter in R. v. Waveney District Council, Ex parte Bowers, The Times, 25 May 1982, in which the applicant could have a bed if one was available but had to walk the streets of Lowestoft by day.

13

Puhlhofer was concerned with the physical quality of the accommodation rather than the period of time for which it would be available. It seems to me highly improbable however, that having rejected any implication as to physical suitability, your Lordships' House would have accepted the implication of a requirement that the accommodation must in some sense be settled. The Puhlhofers and their two children were living in a single small bedroom in a bed and breakfast guest house pending the availability of a two-bedroom flat. No one could have described their accommodation as settled. The Act deals with precariousness of tenure by the concept of being "threatened with homelessness", which is defined in section 58(4) as meaning that it is likely that one will become homeless within 28 days. This does not fit very easily with an implication that a person whose tenure is less precarious can be regarded as not merely threatened with homelessness but actually homeless.

14

The consequence of the decision in Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless. This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority's duty to provide them with accommodation. To remedy this difficulty, the 1986 amendments introduced a definition of "accommodation" in section 58(2A):

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

15

Guidance on the quality of accommodation which a local housing authority is entitled to treat as reasonable for a person to continue to occupy is provided by section 58(2B):

"Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, 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."

16

It follows that a local authority is entitled to regard a person as having accommodation (and therefore as not being homeless) if he has accommodation which, having regard to the matters mentioned in subsection (2B), it can reasonably consider that it would be reasonable for him to continue to occupy. This produces symmetry between the key concept of homelessness in section 58(1) and intentional homelessness in section 60(1). If the accommodation is so bad that leaving for that reason would not make one intentionally homeless, then one is in law already homeless. But 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. If, notwithstanding that the accommodation is physically suitable, the occupier's tenure is so precarious that he is likely to have to leave within 28 days, then he will be "threatened with homelessness" within section 58(4). But I find it hard to...

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