R Rachel Edwards and Others v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 08 February 2016 |
| Neutral Citation | [2016] EWHC 173 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2016 |
| Docket Number | Case Nos CO/1518/2015, CO/1520/2015, |
[2016] EWHC 173 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case Nos CO/1518/2015, CO/1520/2015,
CO/2045/2015 & CO/2177/2015
Zia Nabi and Daniel Clarke (instructed by The Community Law Partnership) for the Claimants
Andrew Arden QC, Andrew Dymond and Riccardo Calzavara (instructed by Legal and Democratic Services, Birmingham City Council) for the Defendant
Hearing dates: 7–11 December 2015, and 25 January 2016
Introduction
Birmingham City Council ("the Council") is the largest housing authority in the country.
Each of the Claimants made an application to the Council for housing as a homeless person. They each claim that the manner in which the Council dealt with his or her application was unlawful; and, further, that that manner reflected systemic failings. They say that the Council, advertently or inadvertently, both in their own specific cases and generally, discourage and divert applications so that individuals are denied their statutory rights to have their situation properly inquired into and be given interim accommodation whilst those inquiries are being made.
There are four claims before me. In two cases, Rachel Edwards and Vernica Cole, on 28 April 2015, Haddon-Cave J granted permission to proceed and interim relief. At a hearing on 16 July 2015, I refused the Council's application to set aside that grant. In Yasmin Saeed, on 7 May 2015, Knowles J refused permission to proceed. On 16 July 2015, I directed that the renewed application for permission be listed for oral hearing and, if permission be granted, the substantive hearing should follow immediately. I also directed that the application for permission in the fourth case, Marian Noworol, not yet considered, should also be listed for a rolled-up hearing. I heard each of those extant applications together.
At that hearing, Zia Nabi and Daniel Clarke appeared for the Claimants; and Andrew Arden QC, Andrew Dymond and Riccardo Calzavara appeared for the Council. I thank them all for their contribution.
The Legal Framework
The Statutory Provisions
A local housing authority's duties towards those in its area are found primarily in Parts VI and VII of the Housing Act 1996 ("the 1996 Act"). All statutory references in this judgment are to the 1996 Act, unless otherwise appears.
Part VI governs the allocation of council housing, i.e. housing accommodation owned by the relevant local housing authority. It requires the authority to have a scheme for determining priorities and procedures in the allocation of their housing (section 166A(1)). Subject to statute and any regulations made by the Secretary of State (section 166A(10)), an authority may devise its own scheme for allocation based upon principles it has decided to apply (section 166A(5)); but it is required then to allocate housing in accordance with that scheme (section 166A(14)). One of the relevant statutory requirements of any scheme is that set out in section 166A(3):
"As regards priorities, the scheme shall… be framed so as to secure that reasonable preference is given to —
(a) people who are homeless (within the meaning of Part VII);
(b) people who are owed a duty by any local housing authority under section 190(2), 193( 2) or 195(2)… or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions…".
So, in allocating its own housing stock under Part VI, an authority has to take account of, and give reasonable preference, to homeless people for which it is responsible.
The Council owns approximately 63,000 housing units. It offers a "choice-based" allocation system, known as "the Choice Lettings Scheme", under which people who qualify are able to bid for properties, and the bidder with the highest number of points (awarded on the basis of need and other considerations) is offered the property. To that extent, applicants have a choice of properties. In addition, "management bids" can be placed by the Council itself on behalf of those towards whom it owes a housing duty and who are not bidding (or bidding successfully) for themselves.
When compared with demand, there is a very considerable shortfall of available units. For the year 2014–15, there were 4,859 new lets compared with about 22,500 Part VI applicants seeking accommodation. There is a shortfall across the board, but the scarcity of larger properties is particularly striking: in 2014–15, there was a "waiting list" of nearly 2,500 applicants for 117 four-bedroom units available, and 1,667 applicants for just 7 units with five or more bedrooms. Just from these bare statistics, it is clear that, in exercising its Part VI functions, the Council faces formidable challenges.
Part VII of the 1996 Act defines "homeless", and governs the provision of assistance to those who are homeless by housing authorities in England. It makes separate provision for housing authorities in Wales, and for various categories of persons from abroad, but neither of those feature in these claims.
It has been properly recognised that the duties imposed on housing authorities by Part VII are part of the social welfare scheme, intended to confer benefits on vulnerable people at the public expense on grounds of public policy (see, e.g., O'Rourke v Camden London Borough Council [1998] AC 188 at page 193D-E per Lord Hoffmann). The reverse side of this coin is that, for those people, the provisions are intended to be "a lifeline of last resort" ( R v Hillingdon London Borough Council ex parte Puhlhofer [1986] AC 484 ("Puhlhofer") at page 517C-D per Lord Brightman).
The first statute to require authorities to assist homeless people was the Housing (Homeless Persons) Act 1977 ("the 1977 Act"), under which a person was "homeless" if, and only if, he had no accommodation which he was entitled to occupy (section 1).
Section 3 of the 1977 Act, under the heading "Preliminary duties of housing authorities in cases of possible homelessness etc", provided (so far as relevant):
"(1) If:
(a) a person applies to a housing authority for accommodation or for assistance in obtaining accommodation; and
(b) the authority have reason to believe that he may be homeless or threatened with homelessness;
the authority shall make appropriate inquiries.
(2) In subsection (1) above 'appropriate inquiries' means:
(a) such inquiries as are necessary to satisfy the authority whether the person who applied to them is homeless or threatened with homelessness; and
(b) if the authority are satisfied that he is homeless or threatened with homelessness, any further inquiries necessary to satisfy them:
(i) whether he has a priority need; and
(ii) whether he became homeless or threatened with homelessness intentionally.
(3) …
(4) If the authority have reason to believe that the person who applied to them may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending any decision which they may make as a result of their inquiries…".
These dual duties (a duty to make inquiries, and a duty to provide interim accommodation whilst doing so), based upon the criterion of the authority having "reason to believe" that the applicant may be, amongst other things, homeless, have featured in all subsequent statutory provisions for housing the homeless. They lie at the heart of these claims.
In the 1977 Act, "homeless" was defined in terms of entitlement to occupy a property, without reference to the standard of that accommodation and whether or not it was appropriate or reasonable for the person to continue to occupy it. Thus, the meaning of "homeless" in this statutory context mirrored the generally accepted ordinary usage of the word: for all intents and purposes, "homeless" meant "roofless" in the sense of being without a legal entitlement to occupy any accommodation. Accordingly, in Puhlhofer, the House of Lords held that a couple who lived with two young children in a guest house, without (e.g.) cooking or laundry facilities, could not be homeless within the statutory definition, despite the inadequacy of the accommodation for their needs.
These provisions were transposed across into the Housing Act 1985 ("the 1985 Act"), which repealed the 1977 Act, the duty to inquire finding its way into section 62 and the duty to provide interim accommodation into section 63 of the 1985 Act. However, Puhlhofer prompted Parliamentary intervention, in the form of section 14 of the Housing and Planning Act 1986, which inserted a new section 58(2A) into the 1985 Act, to the effect that:
"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for a person to continue to occupy."
Neither the 1985 Act nor the amendments to it changed the nature or strictness of the dual duties to which I have referred, or the "reason to believe" criterion which triggered them. Therefore, since 1986, "homeless" in this statutory context has been a term of art; and an authority faced with an application for accommodation or assistance with accommodation, under what is now Part VII of the 1996 Act, has been required to consider whether it has reason to believe that the applicant is or may be "roofless", and, if not,...
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