R v Tower Hamlets London Borough Council, ex parte Ferdous Begum
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STAUGHTON,THE MASTER OF THE ROLLS |
| Judgment Date | 30 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0730-9 |
| Docket Number | 92/0762 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1992 |
[1992] EWCA Civ J0730-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Butler-Sloss
Lord Justice Staughton
92/0762
and
MR. ROBERT CARNWATH Q.C. and MR. TERENCE GALLIVAN (instructed by Messrs. T. V. Edwards & Co.) appeared for the Applicant (Rahman).
MR. DAVID WATKINSON and MR. LESLIE THOMAS (instructed by Messrs. Hereward & Foster) appeared for the Appellant (Begum).
MR. ASHLEY UNDERWOOD and MISS L. GIOVANETTI (instructed by James Edward Marlowe, London Borough of Tower Hamlets) appeared for the Respondent (London Borough of Tower Hamlets).
The two matters before this court, one an appeal from the dismissal of judicial review and the second the retention by this court of a substantive application for judicial review after the granting of leave, raise the same issue under the Housing Act 1985 (the Act) as to the right of people suffering from mental illness or mental handicap to apply for priority housing. The relevant facts of each appeal are as follows.
Lutfur Rahman (the applicant)
The applicant is 24. He and his family came to England from Bangladesh in 1991. His family consists of his mother and two sisters aged 16 and 11. They lived at first with relatives in Tower Hamlets and then approached the Homeless Persons Unit. They have been housed in temporary accommodation pending inquiries. The housing authority decided that the mother was homeless, in priority need, and was intentionally homeless and that accommodation would not be provided beyond 3rd February 1992. There has been no challenge to that decision.
The applicant came to the attention of the Community Team for people with Learning Difficulties ("CTLD"), which is part of the Royal London Trust and which assists people with mental handicap living in the community. The applicant was assessed by the same psychologist as the appellant, who concluded that he had both moderate and in some respects severe mental handicap, that he had hearing difficulties and that he is functioning at a mental age of between 10 and 13.
The applicant, assisted by the CTLD, applied to the housing authority for accommodation under the provisions of section 59(c). A representative of the housing authority interviewed the family and the applicant and concluded that the appellant was not capable of making an application under section 62, and on 19th February 1992 another representative of the housing authority wrote to the appellant's mother setting out the appellant's mental condition and assessed mental age, and continued:
"I must therefore conclude that Luthur is dependant on you.
In all of these circumstances I conclude that he cannot have acquiesced in any application for housing and is not capable of making an application for rehousing. It follows that I must treat him as not having made an application and I therefore conclude that the purported application was merely a device by which you sought to get round the unchallenged finding of your intentional homelessness."
On 13th March 1992 Macpherson J. refused leave to move for judicial review, but leave was granted by a division of this court on 23rd March 1992 and the hearing of the substantive application was retained to be heard by this court.
Ferdous Begum (the appellant)
The appellant is 24. She and her family arrived in England from Bangladesh on 17th December 1989. She has a father, mother, either two or three sisters, and a brother. On arrival, after a night with relatives her father approached the Homeless Persons Unit of the respondent housing authority, who housed the family in temporary accommodation pending inquiries. The housing authority found the father to be intentionally homeless and indicated that they would not provide accommodation for the family beyond 18th July 1990. The father took no steps to set aside that decision.
The appellant is profoundly deaf and has very limited speech. She communicates with her family by means of signs and words understood only by them. She has been assessed to a limited extent by a psychologist, who considered that she was functioning far below her potential level but did not come to a conclusion as to her mental age. Additional evidence has been accepted by this court which shows that she has an ability to function quite successfully within the family.
The appellant and her father attended the Homeless Persons Unit on 17th July 1990 and she signed an application for priority housing in accordance with the provisions of section 59(c). By letter dated 11th July 1991 a representative of the housing authority notified the appellant's father that they considered that she had not made an application. After setting out her disabilities the letter concluded:
"Her only means of communication with us has been through you. In all of those circumstances I conclude not only that she could not have acquiesced in any act or omission by you rendering her homeless, I find that she cannot have acquiesced in any application for housing. It follows that I must treat her as not having made an application and I therefore conclude that the purported application was merely a device by which you sought to get around the unchallenged finding of your intentional homelessness."
The appellant was granted leave to move for judicial review by Popplewell J. on 2nd September 1991, but the application was dismissed by Rose J. on 28th November 1991.
The Housing Act 1985 provides a framework in Part III within which local housing authorities try to cope with the problems of homelessness within their local areas. It consolidates earlier legislation dealing with the same problem. Section 58 defines homelessness and threatened homelessness. Section 59(1) sets out the categories of priority need for accommodation, and subsection 1(c) is relied upon in both cases before this court:
"(1) The following have a priority need for accommodation—
(a) a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."
Section 60 defines intentional homelessness. Section 62 deals with the inquiry into cases of possible homelessness or threatened homelessness and provides in general terms for the application to be made:
"(1) If a person (an 'applicant') applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.
(2) If they are so satisfied, they shall make any further inquiries necessary to satisfy themselves as to—
(a) whether he has a priority need, and
(b) whether he became homeless or threatened with homelessness intentionally;…"
Pending inquiries the housing authority have an interim duty under section 63 to make accommodation available to the applicant. Notification of the decision and the reasons for it is covered by section 64. Once a housing authority are:
"65 (2)…satisfied that he has a priority need and are not satisfied that he became homeless intentionally, they shall,…, secure that accommodation becomes available for his occupation."
Sections 65 and 69 also lay other duties upon the housing authority to provide accommodation for a limited period and to offer advice and assistance.
A local housing authority may refer an applicant to another housing authority and house him in the meantime (sections 67 and 68). False statements, withholding information and failure to disclose change of circumstances are dealt with in section 74.
Section 75 states:
"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;…"
In discharge of their duties local housing authorities are assisted by a Code of Guidance on Homelessness. The Secretary of State is empowered to issue such guidance by virtue of section 71(2) and a local housing authority is required to have regard to it. In chapter 3 paragraph 3.2 deals with "What is an application?" and it continues:
"Under section 62 of the Act an authority is required to take action whenever someone approaches it for help in obtaining housing and the authority has reason to believe that he/she may be homeless or threatened with homelessness. This duty exists regardless of which department of the local authority the applicant approaches or of the way in which the application is made. Authorities should be aware of the need to recognise people who should be treated as homeless even if there is no formal application and they should monitor all applications…"
In chapter 6 paragraphs 6.10 and 6.11 the Code of Guidance deals specifically with the groups within the community falling within section 59(c) and in paragraph...
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