Nipa Begum v Tower Hamlets London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE AULD,LORD JUSTICE SEDLEY,LORD JUSTICE STUART-SMITH
Judgment Date17 February 2003
Judgment citation (vLex)[1999] EWCA Civ J1101-6
Date17 February 2003
Docket NumberCase No FC2 99/5451 & CCRTF 98/0815

[1999] EWCA Civ J1101-6

IN THE SUPREME COURT OF JUDICATUREIN

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIS HON JUDGE PLATTON

SITTING IN THE BOW COUNTY COURT

Royal Courts of Justice

Strand, London WC2A 2LL

Before:

Lord Justice Stuart-Smith

Lord Justice Auld

and

Lord Justice Sedley

Case No FC2 99/5451 & CCRTF 98/0815

The Mayor and Burgesses of London Borough of Tower Hamlets
(Appellant)
and
Nipa Begum
(Respondent)

Mr Ranjit Bhose instructed by Russell Power, London, appeared on behalf of the Appellant

Mr Sylvester Carrott instructed by McMillan, Hamilton & McCarthy, London, appeared on behalf of the Respondent. Mr James Bowen appeared on 1 November 1999.

1

1 November 1999

LORD JUSTICE AULD
2

This is an appeal by the London Borough of Tower Hamlets ("the authority") from a decision of His Honour Judge Platt on 19th May 1998 in the Bow County Court, quashing a decision of the authority under Section 203 of the Housing Act 1996 reviewing and confirming its earlier decision that Nipa Begum was not homeless under the provisions of Section 175 of the Act and, therefore, not entitled to housing assistance.

3

The 1996 Act, in Part VII, replaced the housing for the homeless provisions of Part III of the Housing Act 1985. Section 175, which replaces Section 58 of the 1985 Act, provides for homelessness and threatened homelessness as follows:

"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he -

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2) A person is also homeless if he has accommodation but -

(a) he cannot secure entry to it …

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

(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days." [my emphasis]

4

As to sub-section (3), Section 177(2) provides that

"[i]n determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had 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."

5

Before continuing, I should give my understanding of the scheme of Section 175. Sub-section (1) defines homelessness by reference to an applicant's lack of accommodation available for his occupation anywhere in the World. Sub-section (3) defines such accommodation as that which it would be reasonable for him to continue to occupy. Sub-sections (1) and (3) must, therefore, be read together. Sub-section (2) provides an additional definition of homelessness where an applicant has accommodation as described in sub-section (3), hence not rendering him homeless under sub-section (1), but he cannot, for certain practical reasons, use it.

6

The 1996 Act also introduced, by Section 202, a procedure for review by a housing authority of the various decisions it is required by Part VII to make in respect of homelessness, including and notably that as to eligibility of an applicant for assistance. Section 202(3) and (4) require an authority, on a request being made to it within 21 days of the notification of its original decision (or such longer period as it may in writing allow), to review that decision. Section 203 and regulations made under it provide for the procedure and powers of the person nominated to conduct the review; see the Allocation of Housing and Homelessness (Review Procedures and Amendment) Regulations 1996; SI 1996/3122. And Section 204 contains a right of appeal to the County Court against the review decision. It provides:

"(1) If an applicant who has requested a review under section 202 -

(a) is dissatisfied with the decision on the review; or

(b) is not notified of the decision on the review within the time prescribed under section 203

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit. …"

7

The appeal raises four main issues of principle: first, the breadth of the jurisdiction of the County Court under Section 204 of the Act, giving an applicant for review a right of appeal to the County Court "on any point of law arising from" the decision on the review or the original decision; second, whether, accommodation which it is reasonable for an applicant "to continue to occupy" under Section 175(3) of the Act must be accommodation of a degree of permanence; third, whether in considering the reasonableness of such continuation of occupation, a housing authority must consider whether the applicant can afford to travel to that accommodation; and fourth, whether an applicant is unable "to secure entry to" accommodation under Section 175(2) where he or she cannot afford to travel to it.

8

The facts on which these issues fall to be decided were, in summary, as follows. Nipa Begum is a British citizen aged, at the material time, 21. She was born in Bangladesh, where she lived until the age of 13 or 14 when she came to live in the United Kingdom with her parents. At the age of about 17 she married a Bangladeshi during a short stay in Bangladesh, but then returned without him to her family home here. There followed, when she was 18 or 19, a 12 months' stay with her husband at his father's home in Bangladesh, after which she again returned to the United Kingdom and lived with relatives. Shortly after her return she gave birth to a son. She remained here until May of 1997 when she took her son to Bangladesh to spend some time with her husband, again staying with him at his father's home, where they and the child had their own room. Her husband was unemployed and awaiting the outcome of an application for leave to enter and live in the United Kingdom. Whilst in Bangladesh her son became ill and she returned with him to this country, again going to live with relatives. In about September 1997, when they told her that she and her son could no longer live with them, she applied to the authority for housing assistance.

9

The authority, after making enquiries, which included an interview of Nipa Begum, notified her by letter of 15th October 1997 that it was satisfied she was not homeless within the meaning of Section 175 because she had accommodation in Bangladesh which was available for her occupation and which it considered to be reasonable for her to continue to occupy. She sought a review of that decision, pursuant to Section 202. Her solicitors made written representations to the authority on her behalf, relying mainly on an assertion that she could not afford to live permanently in Bangladesh. However, the representations included an acknowledgment that it was Bengali tradition that a married couple would normally live with her husband's family, that she could continue to live with him in his father's house and that his family was supporting him financially. There was no suggestion that she could not afford air fares to Bangladesh for herself and her son.

10

The authority, by letter to Nipa Begum of 27th November 1997, confirmed its original decision that she was not homeless, in particular that she could have continued to live with her husband at his father's house in Bangladesh. I had better set out the material parts of the letter:

… It is accepted that your intention in going to Bangladesh on 5th May 1997 was to visit your husband and for a holiday and that you did not intend to stay there. I note, however, that since you went to Bangladesh in 1993 when you married your husband who has continuously lived in his father's house in Bangladesh, you have spent more time at that property than your accommodation (now no longer available to you) in this country.

It is also accepted that your most recent stay in that property was longer than anticipated.

It is suggested that because your son fell ill whilst in Bangladesh you could not live there on a permanent basis. I do not accept this; you were able to see a Doctor and obtain appropriate medicine.

It is also suggested that you could not remain in Bangladesh due to your financial circumstances there. I note, however, that your husband remains there and is supported by his brother who gives him food and receives money from relatives in this country. For this reason I do not accept that assertion.

It is accepted that the property you occupied in Bangladesh is owned by your father-in-law and that your husband is only a bare licensee without security as, of course, were you. I do not accept that because a person had no security of tenure in any accommodation that she/he is homeless.

It is acknowledged by all parties that you were not asked to leave the property in Bangladesh. …. I note that … it is Bengali tradition for a married couple to live with the husband's family and under no circumstances would your father-in-law ask you to leave due to cultural beliefs. Ms Curtis, Nipa Begum's solicitor], however, stated that your father-in-law would not have agreed to you living there permanently.

… I am satisfied that you could have...

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