R (Khatun and Others) v Newham London Borough Council

INTRODUCTORY

These are conjoined appeals, with permission granted by myself on 29 ^th October 2003, against orders made by Newman J in the Administrative Court on 10 ^th October 2003 when he granted applications for judicial review brought by each of the three respondents against decisions made by the London Borough of Newham ("the Council") in the context of the Council's responsibilities arising under the homeless persons legislation contained in Part VII of the Housing Act 1996 ("the 1996 Act") . The respondents had all applied to the Council as homeless persons to be provided with accommodation pursuant to Part VII.

In essence the judicial review proceedings constituted an assault on the policy or practice adopted by the Council in providing housing to persons to whom they owe the duty imposed by s.193(2) of the 1996 Act, namely to secure that accommodation is available for their occupation. The core of the complaint is that the Council requires such a person to accept or refuse the accommodation offered without his being given an opportunity first to view the property. I shall explain the details in due course. This policy or practice was excoriated in the court below by Mr Luba QC for the respondents as being "manifestly unreasonable, offensive, unfair and accordingly unlawful". The judge, while using somewhat different language, essentially accepted the criticisms of the policy that were put forward.

There was a second point in the case, entirely discrete from the first. It was directly raised in only one of the applications, that of Ms Khatun. In summary the question was whether the Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations") and Council Directive 93/13/EEC ("the Directive") applied to the terms on which accommodation was let by the Council pursuant to its duty under Part VII. The answer to the question fell principally to be determined by reference to a wider issue, namely whether the Regulations and the Directive applied to contracts for the grant or transfer of an interest in land at all; but it depended also on the answers to two associated further questions, namely whether the Regulations and the Directive applied to public authorities such as the Council, and whether the Council was a "seller or supplier" and the respondents were "consumers" within the meaning of the Regulations and the Directive.

This second point in the case was by agreement dealt with by the judge as a preliminary issue (or rather three linked preliminary issues) . In the event that the judge found that the Regulations and Directive indeed applied to the terms on which the Council let accommodation to tenants, it was agreed that all questions as to whether the Council's standard non-secure tenancy agreement was in fact unfair and unlawful were to be adjourned to enable the Council and the Office of Fair Trading ("the OFT") to resolve, if possible, any differences between them by agreement. The OFT is what is called the "lead regulator" with enforcement powers under the Regulations. It was joined as an interested party before Newman J and appeared by leading counsel to argue the preliminary point of principle. Likewise the OFT has been represented before us, by Mr Green QC. Newman J found that the Regulations and Directive did indeed apply to the Council's tenancies.

In these appeals the Council seek to overturn Newman J's conclusions on both issues in the case, although upon the second issue Mr Underwood QC for the Council in his skeleton argument (paragraph 29) makes it clear that the Council's case is advanced "for the sake of good order and to clarify the law".

THE FIRST ISSUE

I turn to the first issue, relating to the Council's policy. It is convenient to set out or summarise the relevant provisions of the 1996 Act and certain statutory guidance given by the Secretary of State before describing the policy itself in more detail and adverting briefly to the facts of the three individual cases. Then I will address the merits of the arguments.

(1) The Housing Act 1996Part VII

Part VII of the 1996 Act opens with s.175 which defines homelessness. I need not set it out. S.182 provides:

"(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.

(2) The Secretary of State may give guidance either generally or to specified descriptions of authorities."

S.184(1):

"If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries 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 this Part."

S.188:

"(1) 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.

…

(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202) .

The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review."

S.189 defines those in priority need. In summary they are pregnant women, persons with dependent children, persons who are vulnerable through old age or certain other causes, and persons rendered homeless as a result of an emergency. S.190 imposes limited duties upon a local authority where it is satisfied that an applicant is homeless, but became so intentionally. S.191 explains what is meant by "becoming homeless intentionally". S.193 imposes on local housing authorities what is known (in the argot of this branch of the law) as "the full housing duty". It is at the centre of these appeals. I should set out the following subsections:

"(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 local housing authority… 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.

(3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167(1A) (policy on offering choice to people allocated housing accommodation under Part VI) .

(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 consequences of refusal and of his 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 their 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 VI…, 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 his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part VI.

…

(7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer 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.

…

(7D) For the purposes of subsection (7B) an offer of an assured shorthold tenancy is a qualifying offer if –

a) it is made, with the approval of the authority, in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority's duty under this section to an end;

…

(7F) The local housing authority shall not –

a) make a final offer of accommodation under Part VI for the purposes of subsection...