R (Sacupima) v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,SIR MURRAY STUART-SMITH,LORD JUSTICE HENRY |
| Judgment Date | 23 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1123-17 |
| Date | 23 November 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBCOF/1999/1337/1340/1328/1327/1341/1329/1334/C |
[2000] EWCA Civ J1123-17
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(CROWN OFFICE —DYSON J)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Henry
Lord Justice Latham and
Sir Murray Stuart-smith
Case No: QBCOF/1999/1337/1340/1328/1327/1341/1329/1334/C
Michael Beloff, QC & David Matthias (instructed by the Solicitor to Newham Borough Council for the Appellants)
Jan Luba, QC (instructed by Messrs Hereward & Foster for the Respondents Sacupima and Roban)
Jan Luba, QC (instructed by the Aina Khan Partnership for the Respondents Ali and Yawalibange)
Stephen Knafler (instructed by by the Aina Khan Partnership for the Respondents Akhtar, Kiese and Rahman)
The appellant is a Housing Authority which has responsibilities to homeless persons under Part VII of the Housing Act 1996 (the Act). The respondents were all, at the relevant time, homeless persons who were seeking the exercise of the appellant's interim duty owed under s. 188 of the Act to provide suitable temporary accommodation pending a decision as to whether or not it owed a duty to provide suitable longer term accommodation under s. 193 of the Act. The respondents all complained that the temporary accommodation which they were allocated by the appellant was not suitable accommodation within the terms of the Act. It was further argued on behalf of the 2nd, 3rd and 5th respondents that the appellant had declined to carry out its duty under s. 188 of the Act at the time that duty arose. Dyson J, while declining to come to any conclusion as to the suitability of the particular accommodation that had been offered, upheld the argument that the appellant had failed to consider properly the needs of the respondents and their families, so that the decisions that were reached were flawed. On the secondary issue, he concluded that the appellant had failed to carry out its duty when it arose, that is at the time that Court Orders were made for possession of the properties then occupied by the respondents in question, and was not entitled to wait until warrants for possession were executed, before embarking on its statutory duties as the appellant had in fact done.
For these respondents, the dispute is now a matter of history. They had, in any event, obtained interim relief prior to the hearing before Dyson J in relation to the temporary accommodation to which they had been allocated, and had, by the time of the hearing before him, been provided with longer term accommodation, the suitability of which is not in issue in these proceedings. From the appellant's point of view, the issues in these proceedings are of considerable practical importance. They are concerned that Dyson J's judgment would place in jeopardy their ability to use, as was the case in relation to all these respondents, bed and breakfast accommodation outside London as a temporary expedient while determining what, if any, duty was owed, and how to meet it, under s. 193 of the Act. The issue in relation to the date at which the duty under s. 188 of the Act arises is also one which they would like resolved.
Despite the fact that in one sense the issues in these appeals are academic, all parties agree that they are ones which this court can and should properly resolve, bearing in mind their practical ramifications. Before dealing with the statutory provisions, and the submissions which have been made by each side on the legal issues, I think that it would be helpful to set out the facts in relation to one of the respondents, Aurora Sacupima, which are agreed to be a reasonably representative set of facts for the purpose of illustrating the problem, and to set out the background of housing shortage which has given rise to the need for the appellant to consider bed and breakfast accommodation outside London as a means of meeting their duty under s. 188 of the Act.
Mrs Sacupima is separated from her husband and was, in April 1999, living in privately leased accommodation under an assured shorthold tenancy agreement. This was a three bedroomed house in which she lived together with her five children, Adriana, aged 20, Artur aged 18, Yolanda, aged 14, Andrew, aged 2, and Jennifer, aged 11 months. On the 7th April 1999, the landlord obtained an order for possession, suspended for six weeks. On the 22nd April 1999 Mrs Sacupima went to the appellant's District Office, where she was interviewed. She was interviewed again, at the Homeless Persons Unit, though it is unclear precisely when, but was advised to await the bailiffs warrant. Details of her and the children were taken, although it would appear that, for what ever reason, inaccurate details were either given or recorded in relation to the education of Adriana, Artur and Yolanda. It was noted that Adriana had GCSEs starting, it was said, in the middle of May 1999. In fact, Adriana was studying nursing at Thames Valley University, and was due to be on a placement with an employer in London between the 28th June and the 9th July. Artur was at the Newham College, studying an advanced Business Administration course for which he was taking exams until the 9th July. Yolanda was the daughter who was taking GCSE exams. Be that as it may, the file did note that as far as Jennifer was concerned, she was receiving ongoing treatment for a burn sustained in February 1999, at Broomfield Hospital, Chelmsford.
As I have said, Mrs Sacupima was advised to return when the warrant for possession was executed. This she did, as instructed, on the 23rd June 1999 together with the children and their belongings. The file was considered by the authorisation officer, Moses Nyanu, who was satisfied that the appellant owed a duty to the family under s. 188 of the Act, concluded that there was no serious reason why the family should not be accommodated outside the appellant's borough and passed the matter to Mr Bryant, the allocations officer. He, having noted that Mr Nyanu had concluded that there was no serious reason why the family should not be accommodated out of the appellant's area, or even out of London if necessary, allocated bed and breakfast accommodation in Great Yarmouth, as a last resort, there being in his view no other suitable accommodation available. The family accordingly found itself in Great Yarmouth, at night, after the shops had shut, in accommodation which provided no cooking facilities and which threatened to disrupt the education of the eldest three children.
After a time, Mrs Sacupima was able to find somewhere for each of the three older children to stay in London, so that they could continue their education and training relatively uninterrupted, although for each of them, this involved cramped accommodation. She considered that even for her and Andrew and Jennifer, accommodation in Great Yarmouth was not suitable. She did not have the money to travel from Great Yarmouth to Chelmsford for an out-patient appointment for Jennifer. It was in these circumstances that she sought legal advice and commenced her proceedings.
The problems that the appellant faces, which resulted in the course which was taken in relation to Mrs Sacupima, are undoubtedly daunting. Mr Williams, the appellant's Homeless Co-ordinator describes in his statements that the homeless crisis is of unparalleled proportions, exacerbated by the large number of asylum seekers with which local authorities like the appellant have to cope. The housing stock in the borough itself is under huge pressure. Demand far outstrips supply. The appellant operates a basic points system for the ordinary waiting list, on which there will be typically thousands of applicants. In addition, there is what is described as the "override waiting list", on which there is at any one time, dozens of families. This list consists of those with the greatest needs. Mr Williams makes it clear that the needs of those on the "override waiting list" at any relevant time were significantly greater than the needs of any of the respondents. He states that there is a strictly limited amount of other accommodation available on a temporary basis for those such as the respondents. At the end of the day, according to him, it may only be bed and breakfast accommodation that will be available. He points out that the appellant has approximately 300 households temporarily accommodated in bed and breakfast accommodation at any one time. This is not because of any preference on the part of the appellant. Bed and breakfast accommodation is more expensive than self-contained accommodation. In the year ending 31st March 1999, the appellant overspent its homeless temporary accommodation budget by £2.5 million, and was expecting to overrun it by an even greater amount to March 2000. In terms of location, a particular problem arises because there are few hotels providing such accommodation in Newham, which means that the appellant has to look elsewhere. The problem is compounded by the fact that a significant proportion of such accommodation as there is has been appropriated by other London Boroughs. The appellant subscribes to the Bed and Breakfast Information Exchange ("BABIE") which is an arrangement between local authorities in London to try to co-ordinate the distribution of the bed and breakfast accommodation, and also to try to ensure that the prices charged are kept to a reasonable level. In July 1999, the double room rate which was the maximum allowable under BABIE was £27 per night. It would appear that some other boroughs ignore that agreement, and are prepared to pay more, which is the...
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