R v London Borough of Newham ex parte Dada
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE HIRST,LORD JUSTICE HOFFMAN |
| Judgment Date | 26 January 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0126-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 94/1105/D |
| Date | 26 January 1995 |
[1995] EWCA Civ J0126-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
QUEEN'S BENCH DIVISION
(Sir Louis Blom-Cooper QC)
Before: Lord Justice Glidewell Lord Justice Hirst Lord Justice Hoffmann
QBCOF 94/1105/D
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
MR. D MATTHIAS & MR. S WOOLF (Instructed by solicitors to the the London Borough of Newham) appeared on behalf of the Apellant
MR. C E MOLL (Instructed by Messrs. Irving Brown & Daughter, London E6, appeared on behalf of the Respondent
Thursday 26 January 1995
This appeal relates to the duties of Housing Authorities under Part III of the Housing Act 1985 which is concerned with housing the homeless. It raises a a question which has not so far been the subject of a decision of the Court until the decision of Sir Louis Blom-Cooper in this case from which this appeal arises.
By section 62 of the 1985 Act, if a person applies to a housing authority for accommodation and claims to be homeless, that authority must make inquiries in order to satisfy themselves whether the applicant is homeless or threatened with homelessness, whether he/she has a priority need, and whether he/she became homeless intentionally. Under section 59 the categories of persons who have a priority need include pregnant women and persons with whom dependent children reside. When the inquiries are completed the authority must notify the applicant of its decision on those three questions (section 64). If a housing authority decides that an applicant is unintentionally homeless and has a priority need, section 65 requires them to
"…..secure that accommodation becomes available for his [the applicant's] occupation".
The latter phrase is defined in section 75 of the Act in the following terms:
"For the purposes of this Part accommodation shall be regarded as available for a person's occupation only if it is available for occupation both by him and by any other person who might reasonably be expected to reside with him….."
Where the statue says "him", under the normal rules of the Interpretation Act it means "him or her".
The first and main question at issue in this appeal is, when an applicant (or an applicant's wife or partner) is pregnant, is the unborn child she is carrying a "person who might reasonably be expected to reside" with the applicant? Even more succinctly, the question narrows down so that it becomes, "Is the unborn child a person within that phrase?" Sir Louis Blom-Cooper, sitting as a Deputy High Court Judge, decided as a matter of law that the answer to that question is "Yes". He therefore held that Newham London Borough Council ("the Council") which had offered to make available to Mr. and Mrs. Dada a flat which they, the Council, considered suitable for a married couple without children at a time when Mrs. Dada was eight months pregnant, had not complied with their obligation under section 65. The Council now appeal against that decision.
There is a second subsidiary issue, namely, whether the Council are entitled to require as a condition of entertaining an appeal against the allocation of a particular dwelling through their internal appeals procedure, that the Applicant should normally first take up the offer of, and start to occupy, the disputed dwelling. The issue can be narrowed down to the question, did this Council's appeals procedure require that the appeal would only be available if the applicant took those steps, or did it provide for any possibility of exceptional circumstances when that would not be required? The Judge found in favour of the Council on this issue, but a notice of cross appeal has been entered against it.
The facts disclosed before the Judge and before us are these. In September 1992 Mr. And Mrs. Dada were occupying private rented accommodation in the London Borough of Newham but their then landlord had obtained a Possession Order against them. They applied in that month to the Council's Homeless Persons Unit for assistance and accommodation as persons threatened with homelessness. In November 1992 a warrant for possession of the property they were occupying was issued which was executed on 16 November. They were accommodated for a day or so in bed and breakfast accommodation and then in temporary accommodation Housing Association property on a shorthold tenancy.
On 26 March 1993, after an interview, they were notified of the Council's decision on the three questions in a letter that read:
"I write to you concerning my decision with regard to the above.
This authority is satisfied that you are homeless or threatened with homelessness, you have a priority need and you are not homeless or threatened with homelessness intentionally.
We will offer you a permanent home as soon as we can but it may take as long as 18 months. Your details will be added to a computerised data order waiting list. If you would like a print-out showing your position on the list, please phone the above number and request it from the Duty Caseworker."
Despite that letter saying that it may take as long as 18 months before an offer of permanent accommodation was forthcoming, in fact in this case an offer of permanent accommodation was made ten days later, on 5 April 1993, with commendable rapidity. That letter, which was a common form letter with the details filled in, stated:
"We are now able to offer you a Council tenancy at 86 Comyns Close, E16. This is a one bedroomed property with gas central heating. The keys for the above property are availalble NOW for you at the above address and will ONLY be held until Tuesday 13 April 1993. You must let me know immediately if you cannot view the property by this date. If you do not contact the office by this date this will be an unreasonable refusal and NO FURTHER OFFERS WILL BE MADE.
…..
IF YOU ARE THINKING OF REFUSING THIS OFFER PLEASE READ THE LETTER ENCLOSED AS YOU WILL NEED TO ACT QUICKLY BECAUSE NO FURTHER OFFERS WILL BE MADE."
The letter enclosed, again in common form, stated:
"You are only entitled to one reasonable offer. This offer is unfurnished. If you are thinking of refusing it, you should bear in mind the following points."
Then it tells the applicants that if they refuse the offer the Council will decide whether the refusal is reasonable or unreasonable. The letter continues:
"If you are told the refusal is unreasonable, you will not be entitled to any further offers.
…..
If you wish to appeal, you must accept the offer, sign the Tenancy Agreement and move into the property. If you do not sign the Tenancy Agreement and move into the property, there is no right of appeal against the offer.
If your appeal is successful you will receive another offer."
On 7 April Mr. And Mrs. Dada visited the office of the Homeless Persons Unit. A note was made by the officer who then interviewed them:
"The Applicant and his wife were in the office re refusal of offer. Explained they have to accept the offer as they are entitled to one bedroom until the baby arrives.
Explained the consequence of refusing the accommodation as their present tenancy will be terminated (evicted)."
That meant that the shorthold tenancy of the temporary accommodation that they were holding would be brought to an end because it was the Council's view that, by making the offer which it considered reasonable, it had complied with its obligation to the Dadas under section 65. The reason why Mr. And Mrs. Dada refused the offer of this particular flat was twofold. Partly because Mrs. Dada suffers from a combination of epilepsy and sickle cell anaemia the flat is on the seventh floor (it has a lift) but she was concerned that it might present problems for her from a health point of view. That reason is not one which is relevant to either Sir Louis' decision or this appeal. The other reason is that she was eight months pregnant.
The Council accepts that its obligation under section 65 is not merely to secure that accommodation becomes available for the applicant's occupation, but to secure that accommodation which is reasonably suitable for that particular applicant is made available to him or her. That, no doubt, as suggested in argument, is as a result of the decision of the House of Lords in Islam v Hillingdon London Borough Council [1981] 3 AER and 3 WLR.
It is as a result of the alleged failure of the Council to comply with that obligation that the application for judicial review which came before Sir Louis Blom-Cooper arose. The Council has to decide what are the reasonable needs of applicants who it is satisfied are homeless, unintentionally homeless, and in priority need, and the number of children a parent or parents have is a most important factor in deciding the nature of the accommodation that is going to be offered. The Council policy, generally speaking, is that single parents or two parents living together are offered one bedroomed accommodation. If there is one living child the offer is of two bedroomed accommodation. If there are two living children...
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