Din (Taj) v Wandsworth London Borough Council

CourtHouse of Lords
JudgeLord Wilberforce, Lord Fraser of TuIIybelton, Lord Russell of Killowen, Lord Lowry, Lord Bridge of Harwich, Lord Fraser of Tullybelton
Judgment Date26 Nov 1981
JurisdictionEngland & Wales

[1981] UKHL J1126-1

House of Lords

Lord Wilberforce

Lord Fraser of Tullybelton

Lord Russell of Killowen

Lord Lowry

Lord Bridge of Harwich

Din (A.P.) and Another (A.P.)
(Appellants)
and
Mayor Etc. of the London Borough of Wandsworth
(Respondents)(England)
Lord Wilberforce

My Lords,

1

This appeal arises under The Housing (Homeless Persons) Act 1977. In December 1979 the appellants, who are husband and wife, applied to the London Borough of Wandsworth, the respondents, for housing as homeless persons entitled to priority under the provisions of this Act. The respondents refused their application on the ground that they were "intentionally homeless". The question is, or ought to be, whether the respondents in so doing erred in law: I say "ought to be" because the procedure adopted by the appellants was to sue the respondents in the Wandsworth county court for damages and a mandatory injunction to house them; this resulted in a trial with witnesses of issues of fact. At the conclusion of this trial His Honour Judge White found for the appellants, awarded them damages, declared that the determination of the respondents was void, and made an order that the respondents should forthwith secure that accommodation become available for the respondents and their family, subject to a stay pending appeal. The Court of Appeal by majority reversed this order, and the appellants now seek its restoration. I shall comment upon this procedure later in this opinion.

2

The Act of 1977 was an important measure imposing for the first time on housing (sc. local) authorities a duty to accommodate or to assist homeless persons. There had previously been legislative provisions for the benefit of the homeless through local authority welfare departments, but these suffered from weakness of definition and of means of enforcement. The Housing Act 1957, section 113, placed certain obligations upon local authorities as regards housing, including one of securing that in the selection of their tenants a reasonable preference should be given to persons occupying insanitary or overcrowded houses, having large families, or living in unsatisfactory housing conditions. The Act of 1977 (section 6 (2)) made use of this provision by bringing homeless persons within it, and by imposing on local authorities independent duties under that Act (see section 6(1)( b) and ( c)).

3

In applying and interpreting this Act there are several important points to bear in mind. First, it is designed for the expressed purpose of bringing families together. Secondly, it forms part of a complex of duties which local authorities owe to categories of persons seeking housing. These persons are normally placed on a waiting list, in some areas a very long one, and are given accommodation according to a points system of priority. Inevitably every allocation of priority housing to homeless persons must have the effect of deferring the hopes of persons in other categories, some of whom may have been waiting for a long time. Thirdly, a decision against priority treatment under the Act does not mean that nothing can be done for the "homeless" applicants. They can join the waiting list for a council tenancy�indeed Mrs. Din did so in June 1979�or they can seek nomination to a housing association, or, with the help of advice, they can seek private sector housing, with temporary accommodation meanwhile. Fourthly, as the Act recognises, conditions may (and do) differ greatly from one authority to another, and in administering its provisions, they may be taken into account. The Act must be interpreted in the light of these matters, with liberality having regard to its social purposes, and also with recognition of the claims of others and the nature and scale of local authorities' responsibilities. It should be noticed that the Secretary of State has power (section 12) to give guidance to local authorities, and that he has done so through a prescribed code of conduct. This (paragraphs 2-19) emphasises that it is for the authority to satisfy itself whether an applicant became homeless intentionally and that careful and sensitive inquiries will be important.

4

I can summarise fairly briefly the relevant statutory provisions. "Homelessness" is defined in section 1. It is not confined to cases where the applicant himself is without accommodation but expressly includes the case where a person has no accommodation which he, together with any other person who normally resides with him as a member of his family, is entitled to occupy. Subsection (3) adds that a person is "threatened with homelessness" if it is likely that he will become homeless within 28 days.

5

Section 2 defines the homeless persons who are considered to have a priority need for accommodation. The housing authority must be satisfied either that the applicant has dependent children who are residing with him or who might reasonably be expected to reside with him or that he comes within another of the categories stated in the section.

6

Section 3 imposes on local authorities, when faced with a case of possible homelessness, to make appropriate inquiries. These relate to (i) the state of homelessness or threatened homelessness. (ii) the question of priority need (iii) inquiries necessary to satisfy them "whether he [the applicant] became homeless or threatened with homelessness intentionally".

7

Section 4 defines in detail the duties (so expressed) of local authorities in the various cases. If they are satisfied that a person is homeless, or threatened with homelessness, and that he has a priority need, but are also satisfied that he became homeless or threatened with homelessness intentionally, the duty is to furnish him with advice and appropriate assistance: (section 4(1) and (2) ( b)).

8

If they are satisfied, as above, but not satisfied that he became homeless intentionally, the duty is to secure that accommodation becomes available for him. (This is subject to certain considerations as to local connections with the authority's area: section 5.)

9

The words "are satisfied" must be noted: they leave the decision, on these issues of fact, to the local authority. On well-known principle, there is no appeal to a court against such a decision, but it may be subject to "judicial review" for error in law including no doubt absence of any material on which the decision could reasonably be reached.

10

Section 8 contains safeguards as regards any decision of a local authority. The applicant must be notified of it; and, in particular, if the authority notifies him that they are satisfied that he became homeless intentionally, they must notify him of their reasons.

11

Finally, there are the critical provisions regarding intentional homelessness. These are contained in section 16 or 17, the relevant parts of which I must quote. I think it is more intelligible to do so in reverse order.

"17 (1) Subject to subsection (3) below, for the purposes of this Act 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.

(2)�����.

(3) An act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate for the purposes of subsection ( 1) or (2) above.

(4) Regard may be had, in determining for the purposes of subsections (1) and (2) above whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he applied for accommodation or for assistance in obtaining accommodation."

"16. For the purposes of this Act accommodation is only available for a person's occupation if it is available for occupation both by him and by any other person who might reasonably be expected to reside with him and any reference in this Act to securing accommodation for a person's occupation shall be construed accordingly."

12

On these provisions the case of Mr. and Mrs. Din has to be decided. Can they successfully challenge the decision of the local authority that it was satisfied that the appellants became homeless intentionally within the definition in section 17 (1)? To answer this, we must consider the facts as they were before the local authority as the result of their inquiries.

13

The appellants are married with four children: there is no doubt that they would fall into a potential priority class. In 1977 the whole family moved, from Croydon, into accommodation at 56 Trinity Road, Wandsworth� accommodation which was suitable for the whole family to occupy. This belonged, under a lease, together with a shop, to a relative, Mr. Jaswail. Mr. Din entered into a loose partnership with Mr. Jaswail dealing with Pakistani food, but Mr. Din retained his existing employment with the Airfix Company. In April 1978 Mr. Jaswail withdrew from the business. The landlord of the premises accepted rent from Mr. Din without prejudice, but arrears of rent mounted up and Mr. Din came to be in financial difficulties. In June 1979 Mrs. Din went to the Housing Aid Centre in Wandsworth and was put on the waiting list for accommodation. She was advised that before she could be helped she would have to wait for a court order for possession to be made against her. Mr. Din was similarly advised on 2nd July 1979. On 28th August 1979 the appellants vacated the premises: no court proceedings had been initiated against them, and no demand for vacant possession had been made. I do not think that there is any doubt that this action was deliberate and intentional and fell within the provisions of section 17. They then went to live with Mr. Jaswail in a flat at Upminster: this was crowded accommodation. Mr. Din hoped to get...

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