R (Aweys and Others) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith |
| Judgment Date | 07 February 2008 |
| Neutral Citation | [2008] EWCA Civ 48 |
| Docket Number | Case No: C1/2007/0336 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2008 |
[2008] EWCA Civ 48
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon. Lord Justice Ward
The Rt Hon Lady Justice Arden and
The Rt Hon Lady Justice Smith
Case No: C1/2007/0336
Ashley Underwood QC and Catherine Rowlands (instructed by Legal Services Department, Birmingham City Council) for the Appellant
Jan Luba QC and Zia Nabi (instructed by The Community Law Partnership) for the Respondents
Lord Justice Ward:
Introduction
We are all sadly familiar with the shocking sight of the homeless sleeping on the streets, invariably because they have nowhere else to go. In this case they have been dubbed the “roofless” or “street” homeless. They may or they may not have sought help from their local authority housing department to find a roof over their heads.
There is another, but less obvious category of homeless person. These are the large families crammed into and cramped in accommodation which it is unreasonable for them to continue to occupy because of the overcrowding. They are the “homeless at home”.
The plight of both the roofless or street homeless and the homeless at home must concern each and every one of us fortunate enough to be well-housed. This case demonstrates, moreover, that we must also afford sympathy for the housing authorities up and down the land who have, as I shall set out, responsibilities for preventing homelessness in their districts and securing that sufficient accommodation is and will be available for the homeless. The local housing authority is under a duty to secure suitable accommodation for those not intentionally homeless who are in priority need. How can they discharge those functions when that accommodation simply is not available to meet the need? The dilemma is vividly posed by Collins J. in the judgment under appeal:
“4. Each claimant has a large family and so requires accommodation which has more than three bedrooms. Such accommodation is not readily available in Birmingham. The defendant is the largest local authority in the country and at any one time has some 19000 people waiting for housing and a further 17000 awaiting transfer. In the year ending 31 March 2006, there were 9576 homelessness applications, which is apparently about 20% of all applications made in England. There is a limited stock and inner city clearance programmes coupled with the exercise of rights to buy reduce what is available. The defendant has entered into agreements with registered social landlords so that 50% of their vacancies are made available to it and, so far as possible, individuals are given advice to try to help them to find privately rented accommodation or accommodation out of the defendant's area.”
The solution adopted by the appellant, the Birmingham City Council, was to leave the homeless at home while they waited, Micawber-like, until something better turned up. They adopted an allocations policy giving preference to the street roofless above the homeless at home. On 26th January 2007, Collins J declared them to be in breach of their duty to secure suitable accommodation for the six appellants and he declared the allocation policy to be unlawful. The appeal is brought with the permission of Carnwath L.J. who noted that the issues raised in the appeal are of some general importance to housing authorities.
The legislative structure relating to homelessness
The code is contained in Part 7 of the Housing Act 1996 as amended ('the Act' or 'the Act of 1996'). It deals with two classes of persons, the homeless and those threatened with homelessness and, as we shall see, the Act imposes different duties for each class. Section 175 defines the two classes. A person is homeless if he has no accommodation available for his occupation: see section 175(1) and a person is threatened with homelessness if it is likely that he will become homeless within 28 days: see section 175(4). Section 175(3) is important and perhaps crucial to this appeal. It is a deeming provision. It provides:
“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him continue to occupy.”
Section 177 sets the test for ascertaining whether it is reasonable to continue to occupy accommodation and, by virtue of section 177(2):
“In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard should 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.”
A person who believes himself to be homeless or threatened with homelessness and who is eligible for assistance under the Act (persons from abroad or asylum seekers being those who are ineligible), may apply to the local housing authority for accommodation or for assistance in obtaining accommodation. Under section 184(1), the first responsibility of the housing authority is to make such inquiries as are necessary to satisfy themselves
“(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of the Act.”
The authority must then notify the applicant of their decision.
If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and in priority need, then section 188 imposes an interim duty to secure that accommodation is available for occupation pending a decision as to the duty (if any) owed to him. Section 189 defines priority need. Section 191 deals with becoming homeless intentionally and, to show the symmetry within this Part of the Act for example with sections 175(3) and 177(2), I should read section 191(1):
“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.”
We are concerned in this appeal with the “full”, or perhaps more accurately, the “main” duty to homeless persons with priority need, eligible for assistance and who are not homeless intentionally and this is governed by section 193. That provides as follows:
“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 homeless intentionally.
(2) Unless the authority refer the application to another housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.
…
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged this duty under this section.
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant –
(a) ceases to be eligible for assistance
(b) becomes homeless intentionally from the accommodation made available for his occupation,
(c) accepts an offer of accommodation under Part 6 (allocation of housing), or
(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,
(d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.
(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of the right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.
…
(7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer [as that is defined in sub-section (7D) of an assured shorthold tenancy which is made by a private landlord in relation to any accommodation which is, or may become, available for the applicant's occupation.”
The duty owed in the case of threatened homelessness is different. Section 195(2) provides as follows:
“If the authority –
(a) are satisfied that he has a priority need, and
(b) are not satisfied that he became threatened with homelessness intentionally,
they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.”
The manner in which the local housing authority discharge their functions is set out in sections 205 and 206 as follows:
“205 (1) The following sections shall 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 –
section 206 (general provisions),
section 208 (out-of-area placements),
section 209 (arrangements with private landlords).
…
206 (1) A local housing...
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