Ealing London Borough Council v Surdonja. ; Mohammed v Hammersmith and Fulham London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 21 January 2000 |
| Judgment citation (vLex) | [1998] EWCA Civ J1020-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 2000 |
| Docket Number | CO/3526/98 |
[1998] EWCA Civ J1020-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
The Strand
The Hon Mr Justice Scott Baker
CO/3526/98
MR J LUBA and MISS B PREVATT (Instructed by Sutovic & Hartigan, 11 High Street, London W3 6NG) appeared on behalf of the Applicant.
MR B McGUIRE (Instructed by the Legal Department of Ealing, Perceval House, 14/16 Uxbridge Road, London W3) appeared on behalf of the Respondent.
Tuesday, 20th October 1998
The main issue in this case is whether the duty on a local housing authority to provide accommodation under Section 188 of the Housing Act 1996 requires suitable accommodation, or whether any accommodation is sufficient. The decision is important on the one hand because it affects a great number of people who are homeless and in apparent priority need and on the other because of the obvious implications for housing authorities who face an ever increasing demand for accommodation.
The applicant and his wife and three daughters under ten are asylum seekers from the former Yugoslavia. The applicant arrived on 14 August 1997. He went to stay with his brother in a studio room in the London Borough of Kensington and Chelsea. On 23 August 1998 his wife and three children followed him to this country. The whole family then stayed with his nephew in a two bedroomed flat in Acton which was wholly unsatisfactory because the two families comprised a total of nine members.
The family applied to the London Borough of Ealing as homeless. The Council eventually indicated on 14 September that it would provide interim accommodation. It offered a triple room in a hostel in Ealing and a double room in a hostel in Southall. Later it said it had found a double room in another hostel in Southall. All were rejected by the applicant.
The respondent accepts it owed the applicant a duty on 14 September 1998 under Section 188 to house him and his family. It is also accepted that from 16 September 1998 the respondent has performed that duty. In these circumstances I questioned at the outset of the hearing why the application should be determined. Both sides urged me to do so primarily on the ground that the case raises an important issue of law that requires a decision and by the very nature of these cases matters have usually moved on by the date of a substantive hearing. Accordingly I gave leave to amend the Form 86A to seek declaratory relief and the case proceeded.
One further matter should be stated at the outset, namely that the respondent proceeded to discharge its duty under Section 188 in the belief that the duty was to provide suitable accommodation. Its belief was based on two grounds. First The Statutory Code of Guidance on the Housing Act 1996 says at paragraph 20 that the legislation requires that all accommodation secured must be suitable, and second because the unreported decision of Collins J in R -v- Mayor and Burgesses of the London Borough of Newham (No.3) ex parte Fitzgerald Ojuri CO/1218/98 9 July 1998 so indicated. Thus the respondent asked itself, says Mr Luba for the applicant, the right question. Did what it provided meet the duty? Mr McGuire for the respondent, however, contends that notwithstanding the belief that the accommodation had to be suitable that is not what the section requires. I turn therefore to the construction of Section 188.
Accommodation or Suitable Accommodation
Part VII of the Housing Act 1996 casts duties on local housing authorities. It is triggered when an authority receives an application from a person who may be homeless or threatened with homelessness. The first duty is to enquire into the application. The following matters require consideration:
Is the applicant homeless?
Is he in priority need?
Has he become homeless intentionally?
Has he a local connection?
Is he eligible to apply?
The housing authority has a duty to reach a decision on these questions and notify it to the applicant. This case concerns what happens between the point of application and the point of decision.
Section 188 (1) provides:
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this part."
It is to be observed that the word accommodation in this sub section is not qualified by the word suitable whereas, as will be seen in a moment, Section 206 refers to "suitable accommodation".
It is necessary to look with a little care at the framework of Part VII of the Housing Act 1996.
Returning to Section 188, the duty is triggered not only at a low threshold but, by Section 188(2), is owed to all comers. Section 188(3) says when the duty ends, with a rider that there is a discretion to continue to provide accommodation pending a decision on a review. My attention has been drawn to the fact that the same five words appear in the rider "secure that accommodation is available" as appear in sub section (1). These five words recur consistently through the following sections and in my judgment that is an important indicator to the meaning of "accommodation" in sub section (1). These are the critical words that express the duty. The powers and duties under this part of the Act are always characterised by the words "secure that accommodation is available" see e.g. Section 190(a), Section 193(2), Section 194(1), Section 195(4), and Section 200.
The Act then proceeds to a group of sections headed "Supplementary Provisions". Section 205 and the following sections deal with the discharge by housing authorities of their housing functions under Part VII. Section 205(1) provides:
"The following sections have effect in relation to the discharge by a local housing authority of their functions under this part to secure that accommodation is available for the occupation of a person."
It then lists sections 206–209, and sub section (2) provides that in those sections those functions are referred to as the authorities "housing functions under this part".
Section 206 is headed "discharge of functions by local housing authorities".
Section 206(1) provides:
"A local housing authority may discharge their functions under this part only in the following ways:
(a)by securing that suitable accommodation provided by them is available,
(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 suitable accommodation is available from some other person."
The words "only in the following ways" clearly mean that the duty must be discharged in the ways described and no other.
Then, as Mr Luba pointed out, Section 206(1) is concerned with the quality of the accommodation that must be provided i.e. suitable and sub section (2) with the price that is to be paid for it.
The question is whether, when a local authority acts under Section 188, it is...
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