Griffiths v St Helens Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,Lord Justice Rix,Mr Justice Coleridge |
| Judgment Date | 07 March 2006 |
| Neutral Citation | [2006] EWCA Civ 160 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2005/0857 |
| Date | 07 March 2006 |
[2006] EWCA Civ 160
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ST HELENS COUNTY COURT
HIS HONOUR JUDGE MACKAY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon. Lord Justice May
The Rt Hon. Lord Justice Rix and
The Hon. Mr Justice Coleridge
Case No: B2/2005/0857
5SW00018
Jan Luba Q.C. and Adam Fullwood (instructed by Messrs Stephensons) for the Appellant
Mr A Arden Q.C. and Iain Colville (instructed by St Helens Legal Dept.) for the Respondent
Introduction
Mr Jan Luba QC, for the appellant, and Mr Andrew Arden QC, for the respondent in this appeal, both agree that amendments to section 193 of the Housing Act 1996, made by the Homelessness Act 2002, are not happily drafted. They agree about much else that comprises introductory background to the issue in this appeal. I acknowledge and am grateful for their great experience in these matters.
Part VII of the 1996 Act is concerned with homelessness. Section 193 applies where a local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he or she became homeless intentionally. The statutory structure which brings together an applicant having these four attributes is in sections 183 to 192 of the Act. It is described in detail in the judgments in this court of Buxton and Chadwick LJJ in Crawley Borough Council v B (2000) 32 HLR 636, and in shorter form in the judgments of another constitution of this court in London Borough of Tower Hamlets v Deugi [2006] EWCA CIV 159, which is to be delivered at the same time as the judgment in this appeal. It is not necessary to repeat the detail. The accounts in Crawley referred to the structure of the 1996 Act as it was originally enacted.
By section 193(2) , the local housing authority have a duty to secure that accommodation is available for occupation by a homeless applicant to whom section 193 applies, unless the authority refer the application to another local housing authority. The duty under section 193(2) is sometimes referred to as the "full duty", although it is more properly referred to in Part VII as the "main housing duty". There are other lesser duties where an applicant does not fulfil all the criteria in section 193(1) .
Part VII of the 1996 Act was a progression from provisions in the Housing Act 1985. The duties then imposed on local authorities by the Housing (Homeless Persons) Act 1977 and Part III of the 1985 Act were summarised by Sir Thomas Bingham MR (as he then was) in R v Wandsworth London Borough Council ex parte Mansoor [1997] QB 953 at 961E to 963C. It had been thought that a local housing authority's duty to an unintentionally homeless person in priority need under section 65(2) of the 1985 Act was to secure that permanent or secure accommodation became available for his occupation. But the House of Lords had held in R v Brent London Borough Council ex parte Awua [1996] 1 AC 55 that this was not so. Under the substituted section 69(1) of the 1985 Act, the accommodation had to be "suitable", but this did not import any requirement of permanence – see Lord Hoffmann, with whom the other Law Lords agreed, at page 72B. Sir Thomas Bingham MR, in Mansoor, followed Awua in holding that the full duty might be discharged by securing the offer of an assured shorthold tenancy of suitable premises (page 923g) .
Lord Hoffmann said in Awua, at page 72F, that, if a person who had been provided with accommodation in accordance with section 65(2) of the 1985 Act was once again made homeless or threatened with homelessness (for example, because the Council or other landlord had terminated his right of occupation) , he might apply again, and the Council would be required once again to make enquiries under section 62(1) .
Mr Luba and Mr Arden agree that Part VII of the 1996 Act is generally concerned with securing for those who are homeless speedy accommodation which may be temporary, and that the full duty owed under section 193(2) may be performed by securing suitable temporary accommodation. By contrast Part VI of the 1996 Act now makes provision for local housing authorities to allocate secure housing accommodation, sometimes after an introductory period – see sections 159ff.
Speaking broadly, there are three relevant possible sources of rented accommodation, in addition to hotels and bed and breakfast accommodation, whose suitability is now heavily circumscribed by the Homelessness (Suitability of Accommodation) (England) Order 2003 (SI 2003 No. 3326). There may be (1) accommodation owned by the local authority; (2) accommodation in the hands of registered social landlords; and (3) private rented accommodation. Many local authorities, including St Helens Council ("St Helens") , the respondent to this appeal, no longer own residential council accommodation – this the result of the policy of transferring council housing stock to registered social landlords. Local housing authorities have nomination rights to a proportion of accommodation in the hands of registered social landlords. These are more often taken for allocating permanent accommodation under Part VI of the 1996 Act.
Before the Housing Act 1988, a restrictive legislative regime had progressively discouraged private landlords from letting residential accommodation. To counter this and to regenerate a market for private letting of residential accommodation, the Housing Act 1988 introduced assured shorthold tenancies. Section 20 of the 1988 Act provided that an assured shorthold tenancy is an assured tenancy granted for a fixed term of not less than 6 months, where the landlord has no power to determine the tenancy at any time earlier than 6 months from the beginning of the tenancy. Section 21 provides that, once a fixed term assured shorthold tenancy of a dwelling house has come to an end, the landlord is entitled to recover possession of it on giving the tenant not less than 2 months' notice. So a fixed term assured shorthold tenancy is effectively secure for not less than 6 months, but technically insecure thereafter. Section 96 of the Housing Act 1996 inserted a new section 19A into the 1988 Act. With effect from 28 th February 1997, all new assured lettings are, by default, to be assured shorthold tenancies, except to the extent provided for in a new schedule 2A. The three original preconditions for an assured shorthold tenancy were removed. As Mr Luba has written, the assured shorthold tenancy is now the default tenancy in private renting.
Assured shorthold tenancies are the form of tenancy preferred by the great majority of private landlords. Rents are not subject to fair rent regulation by the rent officer but are, in general, market rents agreed between the landlord and tenant. Without financial assistance, these rents may well be beyond the means of those who are homeless. Although they are technically insecure after the first six months, the market sees to it that many tenants live with reasonable security for a number of years under assured shorthold tenancies.
A report by the Office of the Deputy Prime Minister of June 2005, "Providing More Settled Homes", states that:
"… many local authorities have used the private rented sector as a source of good quality, self contained temporary accommodation. As a result, over half of all temporary accommodation used currently is in the private rented sector.
The private rented sector can also provide a source of settled accommodation, where qualifying offers of ASTs are accepted by households who are owed the main homelessness duty."
By section 182 of the 1996 Act, the local housing authority is obliged to have regard to such guidance as may from time to time be given by the Secretary of State. In July 2002, to coincide with the inception of the Homelessness Act 2002, the Office of the Deputy Prime Minister issued a Homelessness Code of Guidance for Local Authorities. Paragraphs 11.27 and 11.28 of this Code are under a heading "Tenancies granted by private landlords and RSLs to assist with interim duties". Interim duties are those whose discharge is provided for in section 209 of the 1996 Act. These do not include the full duty under section 193(2) . Paragraph 11.27 of the Code however states:
"Tenancies granted to homeless applicants by a private landlord or RSL to assist a housing authority discharge a duty under Part 7 would normally be an assured shorthold tenancy. However s.209 provides …"
Paragraph 11.28 states:
"Where a private landlord or RSL provides accommodation to assist a housing authority discharge any other homelessness duty, the tenancy granted will be an assured shorthold tenancy unless the tenant is notified that it is to be regarded as an assured tenancy."
The Code would not of course override the true construction of the statute, if they were different. But this and other matters to which I have referred show, as is agreed, that, at the time when the 1996 Act was amended by the 2002 Act, the most likely kind of privately rented accommodation was an assured shorthold tenancy.
Section 193 of the 1996 Act
It is now necessary to reproduce in full section 193 of the 1996 Act as amended by the 2002 Act. Square brackets indicate those parts of the section which were added by amendment.
" Duty to persons with priority need who are not homeless intentionally
193.-(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became...
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