R v Newham London Borough Council, ex parte Tower Hamlets London Borough Council

Through no fault of his, Mr. Rashid Ullah, a citizen of Bangladesh, has precipitated an important dispute between two London boroughs as to their respective rights and duties under the Housing Act 1985.

Mr. Ullah came to this country in 1972 where he lived and, for part of the time, worked until he rejoined his wife and children in Bangladesh in 1984. There they lived in a three roomed house, owned by Mr. Ullah. We have no direct evidence of how it compared with the houses of his neighbours or indeed with the generality of housing in his part of Bangladesh, but, at a later stage, the Director of Housing at Tower Hamlets expressed the view in a letter addressed to Mr. Ullah that the house "conformed with the accepted standards" in Bangladesh. We do, however, know that it was made of corrugated iron, it was lit by kerosene lights, cooking was over a wood fire and water was obtained from a pond. We also know that toilet facilities were at the back of the house and did not connect to any form of drain, apart from a hole in the ground.

In December 1986 Mr. Ullah decided to return to this country in order to find work, since he had trouble in maintaining himself and said that he had had to sell off land in order to survive. He did not, however, sell the house, but left a relation living in it. On this occasion he left his four year old son behind, but was accompanied by his wife and three of his daughters aged 18, 15 and six. Upon their arrival, Mr. and Mrs. Ullah and their three children went to stay with Mr. Ullah's son and that son's family which included four children. In February 1987 Mr. Ullah's wife gave birth to a son, thus increasing the size of the family to six. Since the son's accommodation, which was in Tower Hamlets, had only three bedrooms and the occupants numbered at least three adults and seven (later eight) children, it was predictable that Mr. Ullah and his family would be required to leave on grounds of overcrowding. This duly happened in April 1987.

At this point Mr. Ullah applied to Tower Hamlets for housing assistance under the provisions of Part III of the Housing Act 1985. That authority provided temporary accommodation in accordance with section 63 of the Act whilst inquiries were made in accordance with section 62 to determine the answers to three questions, namely, was Mr. Ullah "homeless" within the meaning of the Act, had he a priority need for housing and had he become homeless intentionally? Tower Hamlets decided that he was homeless, that he had a priority need, but that he had become homeless intentionally. The first two of these decisions were plainly correct. "Homelessness" is defined in section 58 of the Act by reference solely to accommodation which the applicant has an entitlement to occupy and which is situated in Great Britain. Whilst Mr. Ullah had accommodation in Bangladesh, he had no such accommodation in this country.

It is equally beyond argument that he had a priority need, because of the fact that his family living with him included dependent children. What was not so clear was that he was intentionally homeless, but more of that later.

Assuming that Tower Hamlets' decision that Mr. Ullah had intentionally rendered himself homeless could not be impugned, it was under no obligation to do more than provide him and his family with temporary accommodation for a sufficient period to give him an opportunity of making alternative arrangements and to provide him with appropriate advice and assistance (see section 65(3) of the 1985 Act). This it did.

At this point Mr. Ullah had what proved from his point of view to be a very good idea. He decided to repeat his application for housing assistance under Part III of the 1985 Act, but this time to address it to Newham. He might well have chosen any, or possibly all, of the many housing authorities in this country, but he confined himself to Newham.

Thereupon Newham had the doubtful privilege, but undoubted duty, to make the same inquiries and answer the same questions as was the case with Tower Hamlets, meanwhile providing Mr. Ullah and his family with temporary accommodation. Newham concluded, in agreement with Tower Hamlets and equally rightly, that Mr. Ullah was homeless and had a priority need. However Newham differed from Tower Hamlets in not being satisfied that Mr. Ullah had become intentionally homeless.

At this point Newham would have been obliged to provide Mr. Ullah with permanent housing, had it not been for the provisions of section 67 of the 1985 Act. It was, and is, the contention of Newham that, since neither Mr. Ullah nor any member of his family who might reasonably be expected to reside with him had a local connection with Newham and since Mr. Ullah had a local connection with Tower Hamlets, in that he had lived there between 1972 and 1984 and his daughter had lived there since 1974, it was entitled to refer Mr. Ullah's application to Tower Hamlets and that, upon such a referral, Tower Hamlets became obliged to provide Mr. Ullah and his family with permanent accommodation.

Having rightly, as it thought, determined that Mr. Ullah had become intentionally homeless, Tower Hamlets was outraged to find Newham reaching a different decision and, instead of itself rehousing the Ullah family, requiring Tower Hamlets to do so notwithstanding that, in the light of Tower Hamlets' own decision on Mr. Ullah's intentions, it was under no obligation to do so.

Tower Hamlets refused to accept the referral and, having been criticised in a previous case for simply ignoring the referral ( R. v. Tower Hamlets ex parte Camden [1988] 21 H.L.R. 197), sought judicial review of Newham's decision "that Mr. Ullah was homeless unintentionally, that he had a local connection with [Tower Hamlets] and that he should be referred to [Tower Hamlets] for housing pursuant to section 67 of the Housing Act 1985."

A Divisional Court, consisting of Nolan J., who gave the leading judgment, and Tasker Watkins L.J., quashed the referral and Newham now appeals. Before turning to the reasons which prompted the Divisional Court's decision, it is necessary to look more closely at the relevant statutory provisions and at the way in which each local authority reached their respective decisions.

Could Mr. Ullah's homelessness be categorised as "intentional"?

The test to be applied is derived from section 60 of the Act which is in the following terms:

"60. (1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(2) A person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(3) For the purposes of subsection ( 1) or (2) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.

(4) Regard may be had, in determining whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he applied for accommodation or for assistance in obtaining accommodation."

The only homelessness with which the Act is concerned is homelessness within Great Britain. But it does not follow from this that, in categorising that homelessness as intentional or unintentional, the inquiry is confined to events occurring in this country (see R. v. Hillinqdon ex parte Streeting [1980] 1 W.L.R. 1425 and De Falco v. Crawley [1980] 2 W.L.R. 664). What is in issue is why the applicant became homeless in this country. The answer in Mr. Ullah's case is that he voluntarily ceased to live in his own house in Bangladesh, came to this country, moved in with his son and the son's family under a licence granted by the son and became homeless when that licence was revoked and rightly revoked. This, of course, is the beginning rather than the end of the inquiry, since the essential question is whether his conduct was reasonable.

Tower Hamlets' decision

This was communicated to Mr. Ullah in a letter dated 9th July 1988 from the Director of Housing. After accepting that Mr. Ullah was homeless and had a priority need for accommodation, the letter continued:-

"However, during the course of the interview you stated that you and members of your family resided in Bangladesh from 1984 until 1986 when you came to England and that the accommodation you occupied in that country would have continued to be available for occupiation by yourself and your family had you not left it. I have taken into account the history of your residence in this country, as follows:

1, Molesey House, Camlet Street, E2– 1974–1984

6, Culpin House, Turin Street, E2–Dec. '86–April '87

I have also taken into account...