R (Bibi and Another) v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN |
| Judgment Date | 26 April 2001 |
| Neutral Citation | [2001] EWCA Civ 607 |
| Docket Number | Case No: C.2000/2810 + 2811 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 2001 |
[2001] EWCA Civ 607
Lord Justice Schiemann
Lord Justice Sedley and
mr.Justice Blackburne
Case No: C.2000/2810 + 2811
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE TURNER
Royal Courts of Justice
Strand,
London, WC2A 2LL
David MATHIAS (instructed by Gifty Edila, Head of Legal Services for the Appellant)
Jan LUBA Q.C. (instructed by Miles & Partners for Ataya AL-NASHED)
Christopher MAYNARD (instructed by Messrs. Morgan Hall for Manik BIBI)
This is the judgment of the Court
Overview
These appeals require the court to consider whether these applicants have a claim based on legitimate expectations engendered by an administrative authority.
Before us are two joined appeals by a Housing Authority, the London Borough of Newham, against a judgment given by Turner J. on applications for judicial review which had been brought by two families each of which had been found by the Authority to be unintentionally homeless and in priority need. They are the respondents to these appeals but it is convenient to call them the applicants, as did the judge below. They each have been provided by the authority with housing for the last 10 years or so but they have never had security of tenure. They each successfully brought applications for judicial review of the Authority's decisions that the duty to secure that accommodation became available to them had been discharged. The Judge declared that the Authority were "bound to treat the duties originally owed by them to both applicants under section 65 (2) Housing Act 1985 as not discharged until the applicants be provided by them with suitable accommodation on a secure tenancy". He gave the Authority permission to appeal.
The subsection to which the judge referred reads:
"Where a Housing Authority are satisfied that an applicant has priority need and are not satisfied that he is homeless intentionally, they shall. secure that accommodation becomes available for his occupation."
It is common ground that the Housing Acts do not impose a duty upon the Authority to provide such security of tenure : section 65(2) makes no mention of it. However, in the erroneous (but at the time widely held) belief that the Housing Act 1985 did impose such a duty, the Authority in the early 1990s promised to each of them and to others in a similar position legally secure accommodation within 18 months. The Authority has not fulfilled its promise although many years have passed. The judge held that the applicants had a legitimate expectation that they would be provided with secure accommodation, that the Authority could not renege on its promise and that it was in principle bound to comply with it, although he set no time limits for that compliance.
The claims of the applicants have always been public law rather than private law claims. They submit, and the Authority accepts, that at the time the promises were made, the Authority was under a statutory duty to provide the applicants with accommodation and the Authority had statutory powers to provide them with permanent accommodation (that being the cant phrase for accommodation in relation to which applicants have security of tenure). The applicants do not submit that the Authority are under a statutory duty to provide them with permanent accommodation : such a submission, while it would have succeeded in this Court prior to the decision of the House of Lords in R -v-Brent L.B.C. ex parte Awua [1996] 1 A.C. 35, has become untenable since that decision. The applicants found solely on the promises lawfully made to them by the Authority.
The Authority accepts that it made the promise; state that it made it prior to the decision in Awua because it misunderstood the law and thought that it was obliged (as opposed to merely empowered) by statute to provide permanent accommodation; submit that the Judge developed the concept of legitimate expectation beyond its previously accepted limits in this developing field of law and submit that he was wrong to do so and that it acted lawfully in reneging on its promise.
In his careful skeleton argument, to which we express our indebtedness, Jan Luba Q.C., who appeared for the applicant Al-Nashed and whose submissions were adopted by Christopher Maynard who appeared for the applicant Manik Bibi, submitted that the most helpful conceptual approach to the problems involving legitimate expectation was for the Court to ask itself five questions.
Was there an expectation held by the beneficiary of the statutory duty as to the method by which the duty would be fulfilled? Was that expectation generated by a representation made by the statutory authority (or service provider)? Was the expectation "legitimate"? Would it be unfair to the beneficiary of the duty to allow the statutory authority to resile from its representation? If it would be unfair, is there an over-arching policy consideration which should prevail to enable the statutory authority to resile notwithstanding the consequent unfairness?
David Matthias, who appears for the Authority, is content to accept that conceptual framework. He accepts that the answer to the first two questions is in the affirmative. He submits however, that the expectation was not legitimate, that it would not be unfair for the Authority to resile from its promise and that, even if this would be unfair, there were policy considerations which entitled the Authority so to resile.
In the present cases it is common ground that the Authority committed itself to providing secure accommodation to each of the applicants. The root question is whether the Authority should be held to that promise. This involves a number of considerations – the legal powers and duties of the Authority, the decision making process within the Authority, the effect on the applicants of permitting the Authority to renege on its promise and the effect on others of insisting that the Authority keep its promises to these applicants.
The Statutory Background
The position here is complicated by the fact that the law has changed between the time when the promises were made and the present time. Housing Authorities have long had and still have the power under a succession of Housing Acts to provide accommodation. Since the coming into force of the Housing (Homeless Persons) Act 1977 there has been added to this power a duty to secure that suitable accommodation becomes available to certain classes of the homeless. It was widely thought, prior to the decision in Awua, that the duty to secure that suitable accommodation becomes available implied a duty to secure that permanent accommodation became available. This interpretation meant that in practice the homeless leaped to the front of the queue for local authority housing. This interpretation of the section was rejected in Awua.
The following are the most immediately relevant statutory provisions: -
The Housing Act 1985
s.22:
"A local housing authority shall secure that in the selection of their tenants a reasonable preference is given to -
(a) persons occupying unsanitary or overcrowded houses,
(b) persons having large families,
(c) persons living under unsatisfactory housing conditions, and
(d) persons towards whom the authority are subject to a duty under section 65 or 68 (persons found to be homeless).
Part III of the Act re-enacted the provisions which had been contained in the 1977 Act in relation to the duties owed to the homeless.
S.65(2):
"Where they [i.e. a local housing authority] are satisfied that [an applicant] has priority need and are not satisfied that he is homeless intentionally, they shall. secure that accommodation becomes available for his occupation."
S 69(1):"A local housing authority may perform any duty under section 65 … to secure that accommodation becomes available for the occupation of a person -
a) by making available suitable accommodation held by them under Part II … orunder any other enactment,
b) by securing that he obtains suitableaccommodation from some other person, or
c)by giving him such advice and assistance as will secure that he obtains suitable accommodation from some other person."
The Housing Act 1996
In the Housing Act 1996 there were further changes.
Part III of the 1985 Act was repealed except in relation to an applicant (such as those with whom we are concerned) whose application for accommodation was made before 20 January 1997. Part VII contains the current homelessness provisions.
S193:
"(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) the authority shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years ("the minimum period")
S.194: (1) Where a local housing authority have been subject to the duty under section 193 in relation to a person until the end of minimum period, they may continue to secure that accommodation is available for his occupation.
(2) They shall not do so unless they are satisfied on a review under this section that
a) he has a priority need,
b) there is no other suitable accommodation available for occupation by him in their district, and
c) he wishes the authority to continue securing that accommodation is available for his occupation; and they shall not continue to do so for more than two years at a time unless they are satisfied on a further review under this section as to those...
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