Cocks v Thanet District Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brightman
Judgment Date25 Nov 1982
Judgment citation (vLex)[1982] UKHL J1125-1

[1982] UKHL J1125-1

House of Lords

Lord Diplock

Lord Fraser of Tullybelton

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Brightman

Cocks
(Respondent)
and
Thanet District Council
(Appellants)
(On Appeal from the Queen's Bench Division of the High Court of Justice)
Lord Diplock

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and would allow the appeal and concur in the order which he proposes.

Lord Fraser of Tullybelton

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and with the order proposed by him.

Lord Keith of Kinkel

My Lords,

3

I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. For the reasons which he gives I would allow the appeal and concur in the order which he proposes.

Lord Bridge of Harwich

My Lords,

4

The Housing (Homeless Persons) Act, 1977 has been, and will no doubt continue to be, a fruitful source of litigation. The rights of an applicant for accommodation under the Act, and the corresponding duties of the housing authority, depend upon three questions with respect to the applicant:

  • (1) Is he homeless or threatened with homelessness?

  • (2) If yes, has he a priority need?

  • (3) If yes, did he become homeless intentionally?

5

The primary duties of the housing authority are fourfold:

(a) If the housing authority have reason to believe that the applicant may be homeless or threatened with homelessness, they must make such inquiries as are necessary to satisfy themselves of the answers to the three questions indicated above ("the duty to inquire"): section 3(1) and (2).

(b) If they have reason to believe that he may be homeless and have a priority need, they must accommodate him pending the outcome of their inquiries ("the temporary housing duty"): section 3(4).

(c) If they are satisfied that questions (1) and (2) should be answered affirmatively, but are not so satisfied as to question (3), they must provide permanent accommodation for the applicant ("the full housing duty"): section 4(5).

(d) If they are satisfied that all three questions should be answered affirmatively, they must provide him with interim accommodation and with advice and assistance ("the limited housing duty"): section 4(2) and (3).

6

Normally there will be no room for dispute as to whether or not an applicant is (a) homeless or threatened with homelessness or (b) has a priority need. But the question whether or not a person became homeless intentionally may frequently give rise to difficulties, as is shown by the many reported cases on the subject, including two in your Lordships' House: Din (Taj) v. Wandsworth London Borough Council [1981] 3 W.L.R. 918; Reg. v. Hillingdon London Borough Council, Ex parte Islam (Tafazzul) [1981] 3 W.L.R. 942. Moreover, it is the resolution of this question, when disputed, which is of crucial importance both to the applicant and to the housing authority because of the great practical differences in effect for both parties between the full housing duty and the limited housing duty. The rights claimed by the respondent to the present appeal probably turn in the end on the question of intentional homelessness. But the issue for your Lordships' decision on this occasion is concerned, not with the substance of that question, but with the procedure by which that and other questions under the Act ought properly to be resolved.

7

The respondent instituted these proceedings in the Thanet County Court on 29th January 1982. By his particulars of claim he pleads, in effect, that since 21st December 1981 he and his family have been homeless (although accommodated at the home of a friend) and in priority need and that his frequent applications to the appellant housing authority for accommodation since that date have been refused. The pleading makes no reference to any decision of the appellants notified to the respondent pursuant to section 8 of the Act, but asserts, baldly and boldly, that the appellants owe to the respondent and are in breach of both the temporary and the full housing duty. The prayer for relief claims, inter alia, a declaration to that effect, consequential mandatory injunctions and damages. I mention in passing that the appellants might well have applied to strike out the pleading as it stands as disclosing no cause of action, but this would probably only have led to an amendment of the pleading to identify and particularise the precise issues which the respondent seeks to litigate. Sensibly, no doubt, the parties sought and obtained a consent order from Master Elton which (a) transferred the proceedings to the Queen's Bench Division of the High Court and (b) ordered trial of a preliminary issue as to whether the proceedings were properly brought by action or could only be brought by application for judicial review. That issue was heard before Milmo J. on 30th April 1982, when Mr. Scrivener Q.C., for the appellants, conceded that the learned judge was bound by the decision of the Court of Appeal in De Falco v. Crawley Borough Council [1980] 1 Q.B. 460 to decide the issue in favour of the respondent. The learned judge granted an appropriate certificate under section 12 of the Administration of Justice Act 1969 for appeal direct to your Lordships' House and in due course leave to appeal was granted.

8

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 the case of O'Reilly v. Mackman in which judgment has just been delivered. But before attempting to apply those principles, it is necessary to analyse the functions of housing authorities under the Act of 1977. These functions fall into two wholly distinct categories.

9

On the one hand, the housing authority are charged with decision-making functions. It is for the housing authority to decide whether they have reason to believe the matters which will give rise to the duty of inquiry or to the temporary housing duty. It is for the housing authority, once the duty of inquiry has arisen, to make the appropriate inquiries and to decide whether they are satisfied, or not satisfied as the case may be, of the matters which 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 the courts on the strictly...

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